| Highways | Regulations Pertaining to Particular Functions of the Comissioner of Highways | This rule is not more stringent than its Federal counterpart.
No public comments were received. |
| Highways | Acquisition, Disposal, Lease and Management of Real Property and Appurtenant Structures and Relocation Assistance | This Rule is not more stringent than its Federal counterpart.
No public comments were received.
Note : The Rule is described as procedural, legislative and interpretative but I could only select one option above. |
| Highways | Construction and Reconstruction of State Roads | 1. The Rule at 157-3-7.21 requires that shop drawing be certified by a licensed professional engineer. The federal rule does not have such a certification requirement.
2. The Rule at 157-3-10.1 prohibits contractors from sub-contracting more that thirty percent of the value of a road work contract. The federal rule imposes this thirty percent restriction only on design-build road work contracts.
3. The Rule at 157-3-12.1 allows common carrier rates and taxes thereon which increase after bid award to be recouped from the State by the contractor. No such provision exists in the federal rule.
No comments were received on this Rule. |
| Highways | Traffic and Safety Rules | This Rule is not more stringent than its Federal counterpart. No public comments were received. |
| Highways | Transportation of Hazardous Wastes upon the Roads and Highways | This Rule is not more stringent than its Federal counterpart. No public comments were received. |
| Highways | Community Empowerment Transportation Act Program | This Rule is not more stringent than its Federal counterpart. No public comments were received. |
| Highways | State Transportation Infrastructure Fund Program | This Rule is not more stringent than its Federal counterpart. No public comments were received. |
| Highways | Use of State Road Rightd of Way and Adjacent Areas | 1. The Rule at 157-6-2.57 specifically defines the class of family members who can apply for a roadside memorial. Federal rules do not address
this issue.
2.The Rule at 157-6-7.8.c.1 requires that outdoor advertising signs must be 1000 feet apart alongside interstate roads and controlled access road. Under a 1969 agreement between Highways and the Federal Highway Administration said signs can be 500 feet apart.
3.The Rule at 157-6-8.2 prohibits salvage yards from being within 1000 feet of any state road. The Federal rule only applies the 1000 feet prohibition to interstate roads and federal aid primary roads. |
| Air Quality | To Prevent And Control Particulate Air Pollution From Combustion Of Fuel In Indirect Heat Exchangers | This rule establishes emission limitations for smoke and particulate matter which are discharged from fuel burning units. The Appendix to this rule incorporates compliance determination methods and procedures.
This rule was part of the original State Implementation Plan (SIP) package in 1972. This rule is a 'backstop" for existing sources not subject to federal standards. The opacity limit is more stringent than similar federal regulations, unless an alternative limit is approved per section 3.2 and 3.3, because West Virginia was not in attainment with the 1971 health based Total Suspended Particulate (TSP) National Ambient Air Quality Standards (NAAQS), and these limits were required to bring the State into attainment. Although there are instances where the particulate matter (PM) limit appears to be more stringent in the State rule, the test method in the appendix of the State rule does not capture condensable PM, since the sample is at the temperature of the exhaust stack and not a lower temperature.
Similar Federal Regulation: While there is no federal counterpart regulation to 45-2, there are federal regulations that may apply to the same sources: New Source Performance Standards (NSPS) of 40 CFR Part 60, subparts D (fossil fuel fired steam generators); Da (electric utility steam generating units); Db (industrial commercial institutional steam generating units); Dc (small industrial commercial institutional steam generating units).
DEP determined that this rule is not more stringent; however, a report was submitted to document the comments received. Please see highlighted section for comments pertaining to 45CSR2.
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| Air Quality | To Prevent And Control Air Pollution From The Operation Of Coal Preparation Plants, Coal Handling Operations And Coal Refuse Disposal Areas | The purpose of this rule is to prevent and control air pollution from the operation of coal preparation plants, coal handling operations and coal refuse disposal areas.
This rule was part of the original SIP package in 1972 and follows the parameters of its federal counterpart regulation.
Similar Federal Regulation: 40 CFR Part 60 (NSPS), subpart Y.
DEP determined that this rule is not more stringent; however, a report was submitted to document the comments received. Please see highlighted section for comments pertaining to 45CSR5.
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| Air Quality | To Prevent And Control Particulate Matter Air Pollution From Manufacturing Processes And Associated Operations | The purpose of this rule is to prevent and control particulate matter air pollution from manufacturing processes and associated operations.
This rule was part of the original SIP package in 1972. This rule is a "backstop" for existing sources not subject to federal standards. West Virginia was not originally in attainment with the 1971 TSP NAAQS, 1997 PM, and 2006 PM2.5. There were six 1997 PM2.5 maintenance areas and two 2006 PM2.5 maintenance areas. There are several similar federal regulations dealing with opacity limits for manufacturing processes.
DEP determined that this rule is not more stringent; however, a report was submitted to document the comments received. Please see highlighted section for comments pertaining to 45CSR7.
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| Air Quality | Standards Of Performance For New Stationary Sources | This rule establishes and adopts standards of performance for new stationary sources promulgated by the United States Environmental Protection Agency pursuant to section 111(b) of the federal Clean Air Act, as amended. This rule codifies general procedures and criteria to implement the standards of performance for new stationary sources set forth in 40 CFR Part 60. The Secretary hereby adopts these standards by reference. The Secretary also adopts associated reference methods, performance specifications and other test methods which are appended to these standards.
This rule incorporates by reference its federal counterpart, with limited exception. Federal Counterpart Regulations are 40 CFR Parts 60 and 65.
DEP determined that this rule is not more stringent; however, a report was submitted to document the comments received. Please see highlighted sections for comments pertaining to 45CSR16.
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| Air Quality | Control Of Air Pollution From Hazardous Waste Treatment, Storage And Disposal Facilities | This rule establishes and adopts a program of regulation over air emissions and emission standards for the treatment, storage and disposal of hazardous waste promulgated by the United States Environmental Protection Agency pursuant to the Resource Conservation and Recovery Act, as amended. This rule codifies general procedures and criteria to implement emission standards set forth in the 40 CFR Parts 260, 261, 262, 264, 265, 266, 270 and 279 as listed in Table 25-A. The Secretary hereby adopts these standards by reference. The Secretary also adopts associated reference methods, performance specifications and other test methods which are appended to these standards.
This rule adopts and incorporates by reference, with limited modification, its federal counterparts. Federal Counterpart Regulations are: 40 CFR Parts 260, 261, 262, 264, 265, 266, 270, and 279.
DEP determined that this rule is not more stringent; however, a report was submitted to document the comments received. Please see highlighted section for comments pertaining to 45CSR25.
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| Mining And Reclamation | West Virginia Surface Mining Reclamation Rule | Contemporaneous Reclamation 38-2-14.15 In 1992 in response to concerns of the Agency that the rules did not adequately address current mining methods and practices, the Agency and Industry Workgroup developed contemporaneous reclamation policy. The policy addressed draglines operation, multiple seam operations, and operations removing the entire coal seam(s) running through the upper fraction of a mountain. In 1993, the Agency submitted the policy as a proposed rule change and passes the legislature.
Commercial Forestry, Forestry, and Homesteading Land Uses. 38-2-7.4 and 7.5 In February 2000, the State signed a consent decree to resolve several allegations of the mountaintop removal lawsuit filed by the West Virginia Highlands Conservancy in U.S. District Court. As specifically required by the consent decree, (items 12, 15, 16, and 17) the State promulgated rules and code changes.
Surface Water Runoff Policy 38-2-5.6 Valley fill Construction Rules 38-2-3.7.d; 38-2-14.14.a.8; 38-2-14.14.a.9; 38-2-14.15.a.2 and g. Following the conclusions and recommendations of the flood analysis conducted by DEP at the order of Governor Wise, the Agency proposed a change in valley fill construction in order to minimize sediment erosion from mining operations during heavy rainfall and passes the legislature (House Bill 2603) in the 2003 regular session.
38-2-3.2.g. Notice of Technical Completeness. This was a 2008 rule changed requested by the Secretary and its purpose is to provide the public an opportunity to review the application once technical review is completed
Treating water at bond forfeiture sites/ Bond release. In a Federal Register dated October 4, 1995, The State was notified of three required program amendments (948.16(jjj) Limitation of Funds for Water Treatment, 948.16(kkk) Collection of Special Reclamation Tax and 948.16(lll) Eliminate Deficit in Bond Pool). In a special session held in September 2001, the Agency proposed the “7 and 7” plan and the legislature authorized the Code and Rule changes (Senate Bill 5003).
38-2-11.3.a.3 Surety Bonds. This was added in 2001 to address concerns about the financial solvency of sureties providing reclamation bonds in West Virginia. The DEP did not have the necessary resources or expertise to regularly and timely monitor the financial condition of sureties doing business in West Virginia.
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| Mining And Reclamation | Surface Blasting Rule | DMR has prepared one proposed amendment to38CSR2 for the 2018 Legislative Session that consolidates all the blasting requirements under 38CSR2 by modifying §38-2-6 (Blasting) and create new sections 38-2-25 thru 27 (Certification of Blasters; Blasting Damage Claim and Arbitration for Blasting Damage Claims and Explosive Material Fee, respectively). It also modifies the notification requirements for preblast surveys to be consistent with change made in §22-3-13a. Preblast survey requirements by SB 687 (2017 Regular Legislative Session). Once the requirements have been consolidated, 199CSR1, Surface Blasting Rule, can be rescinded |
| Air Quality | Alternative Emission Limitations During Startup, Shutdown, And Maintenance Operations | The West Virginia Department of Environmental Protection (DEP) determined that this rule is not more stringent than the federal guidance. The Division of Air Quality (DAQ) did not receive any comments on this rule. |
| Air Quality | To Prevent And Control Air Pollution From The Operation Of Hot Mix Asphalt Plants | The West Virginia Department of Environmental Protection (DEP) determined that this rule is not more stringent than the similar federal regulation. The Division of Air Quality (DAQ) did not receive any comments on this rule. |
| Air Quality | Compliance Test Procedures For 45CSR7 "To Prevent And Control Particulate Air Pollution From Manufacturing Process Operations" | The West Virginia Department of Environmental Protection (DEP) determined that this rule is not more stringent than the similar federal regulation. The Division of Air Quality (DAQ) did not receive any comments on this rule. |
| Air Quality | Ambient Air Quality Standards | The West Virginia Department of Environmental Protection (DEP) determined that this rule is not more stringent than the federal counterpart regulations. The Division of Air Quality (DAQ) did not receive any comments on this rule. |
| Air Quality | To Prevent And Control Air Pollution From The Emission Of Sulfur Oxides | The West Virginia Department of Environmental Protection (DEP) determined that this rule is not more stringent than the similar federal regulations. The Division of Air Quality (DAQ) did not receive any comments on this rule. |
| Air Quality | Prevention Of Air Pollution Emergency Episodes | The West Virginia Department of Environmental Protection (DEP) determined that this rule is not more stringent than the similar federal regulation. The Division of Air Quality (DAQ) did not receive any comments on this rule. |
| Air Quality | Permits For Construction And Major Modification Of Major Stationary Sources For The Prevention Of Significant Deterioration Of Air Quality | The West Virginia Department of Environmental Protection (DEP) determined that this rule is not more stringent than the federal counterpart regulation. The Division of Air Quality (DAQ) did not receive any comments on this rule. |
| Air Quality | Control Of Air Pollution From Combustion Of Solid Waste | The West Virginia Department of Environmental Protection (DEP) determined that this rule is not more stringent than the federal guidance and federal counterpart regulations. The Division of Air Quality (DAQ) did not receive any comments on this rule. |
| Air Quality | Permits For Construction And Major Modification Of Major Stationary Sources Which Cause Or Contribute To Nonattainment Areas | The West Virginia Department of Environmental Protection (DEP) determined that this rule is not more stringent than the federal counterpart regulation. The Division of Air Quality (DAQ) did not receive any comments on this rule. |
| Air Quality | Good Engineering Practice As Applicable To Stack Heights | The West Virginia Department of Environmental Protection (DEP) determined that this rule is not more stringent than the federal counterpart regulation. The Division of Air Quality (DAQ) did not receive any comments on this rule. |
| Air Quality | Regulation To Prevent And Control Air Pollution From The Emission Of Volatile Organic Compounds | The West Virginia Department of Environmental Protection (DEP) determined that this rule is not more stringent than the similar federal regulations. The Division of Air Quality (DAQ) did not receive any comments on this rule. |
| Air Quality | To Prevent And Control Emissions From Municipal Solid Waste Landfills | The West Virginia Department of Environmental Protection (DEP) determined that this rule is not more stringent than the federal counterpart regulations and federal guidance. The Division of Air Quality (DAQ) did not receive any comments on this rule. |
| Air Quality | Requirements For Operating Permits | The West Virginia Department of Environmental Protection (DEP) determined that this rule is not more stringent than the federal counterpart regulation. The Division of Air Quality (DAQ) did not receive any comments on this rule. |
| Air Quality | Confidential Information | The West Virginia Department of Environmental Protection (DEP) determined that this rule is not more stringent than the similar federal regulation. The Division of Air Quality (DAQ) did not receive any comments on this rule. |
| Air Quality | Confidential Business Information And Emission Data | The West Virginia Department of Environmental Protection (DEP) determined that this rule is not more stringent than the similar federal regulation. The Division of Air Quality (DAQ) did not receive any comments on this rule. |
| Air Quality | Acid Rain Provisions And Permits | The West Virginia Department of Environmental Protection (DEP) determined that this rule is not more stringent than the federal counterpart regulations. The Division of Air Quality (DAQ) did not receive any comments on this rule. |
| Air Quality | Emission Standards For Hazardous Air Pollutants | The West Virginia Department of Environmental Protection (DEP) determined that this rule is not more stringent than the federal counterpart regulations. The Division of Air Quality (DAQ) did not receive any comments on this rule. |
| Air Quality | Determining Conformity Of General Federal Actions To Applicable Implementation Plans (General Conformity) | The West Virginia Department of Environmental Protection (DEP) determined that this rule is not more stringent than the federal counterpart regulation. The Division of Air Quality (DAQ) did not receive any comments on this rule. |
| Air Quality | Requirements For Determining Conformity Of Transportation Plans, Programs, And Projects Developed, Funded Or Approved Under TITLE 23 U.S.C. Or The Federal Transit Laws, To Applicable Air Quality Implementation Plans (Transportation Conformity) | The West Virginia Department of Environmental Protection (DEP) determined that this rule is not more stringent than the federal counterpart regulation. The Division of Air Quality (DAQ) did not receive any comments on this rule. |
| Mining And Reclamation | WV/NPDES Rule For Coal Mining Facilities | This rule follows the parameters established in its federal counterpart regulation. Federal Counterpart Regulation: 40 CFR Part 122. In 2012 Senate Bill (SB) 615 (passed in 2012) and to clarify provision found at 47 CSR 30.3.4.a works just as effectively as those in non-coal permits and federal permits. It was discussed by the Legislature during its consideration of SB 615 to address a provision contained in the coal mining NPDES rule that has no parallel in federal regulations or West Virginia's non-coal NPDES rule: The discharge or discharges covered by a WV/NPDES permit are to be of such quality so as not to cause violation of applicable water quality standards promulgated by 47CSR2 ...
The other comments highlighted are related to 47-2 Requirements Governing Water Quality Standards and WVA. Code 22-11, West Virginia Pollution Control Act, on water quality criteria issues.
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| Air Quality | Provisions For Determination Of Compliance With Air Quality Management Rules | The West Virginia Department of Environmental Protection (DEP) determined that this rule is not more stringent than the federal guidance. The Division of Air Quality (DAQ) did not receive any comments on this rule. |
| Air Quality | Control Of Ozone Season Nitrogen Oxides Emissions | The West Virginia Department of Environmental Protection (DEP) determined that this rule is not more stringent than the federal guidance. The Division of Air Quality (DAQ) did not receive any comments on this rule. |
| Public Transit, Division of | Rail Fixed Guideway Systems State Safety Oversight | This rule was based on the Federal Transit Administration's 49 CFR Part 674 State Safety Oversight, Final Rule. Therefore it is equivalent to the federal final rule, but is not more stringent than its federal counterpart. |
| Corrections | 105.08 Records Management Program | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.71 Criminal and administrative agency investigations. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 129.00 Progressive Discipline | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.76 Disciplinary Sanctions for Staff. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 132.01 Pre-Employment Background Investigations | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.17 Hiring and Promotion Decisions. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Agriculture | Commercial Feed | It is not more stringent but only different, but only references certain sections of the FDA CRFs sections for feed. We do have more labeling requirements than the federal government. |
| Agriculture | Frozen Dessert and Imitation Frozen Dessert | We only reference certain FDA rules, do not know of any Federal rules or guidelines for Frozen Dessert. |
| Agriculture | Dairy Products and Imitation Dairy Products | Only reference certain federal sections. Equal to federal rules. |
| Corrections | 153.00 Volunteer & Citizen Involvement | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.32 Volunteer and Contractor Training. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 202.01 Providing Services for Disabled Inmates | This policy follows the parameters established in it's federal counterpart regulation - Title II American Disabilities Act. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 308.00 Control of Contraband | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.15 Limits to Cross-Gender Viewing and Searches. . Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Agriculture | Commercial Feed | couldn't attach comments, see other submission |
| Corrections | 308.04 Manual or Instrument Inspection of Inmate Body Cavities/Visual Inspection of Inmate Body Cavities | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.15 Limits to cross-gender viewing and searches. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Agriculture | Primary and Secondary Containment of Fertilizers | Only reference one section of FDA code. No federal laws that I am aware of that regulate these product containment. |
| Agriculture | Marketing of Egg Regulations | Only reference sections of federal code. Rule is equal to federal |
| Corrections | 312.03 Incident Reports | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rules: 115.51 Inmate Reporting and 115.61 Staff and Agency Reporting Duties. Division of Corrections policy is not more stringent than its Federal Counterparts. |
| Agriculture | West Virginia Seed Law (Rule) | Reference sections of federal code. not more stringent than federal |
| Corrections | 332.02 PREA Investigation of Sexual Assault & Abuse | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rules: 115.15 Limits to cross-gender viewing and searches; 115.16 Inmates with disabilities and inmates who are limited English proficient; 115.17 Hiring and promotion decisions; 115.18 Upgrades to facilities and technologies; 115.21 Evidence protocol and forensic medical examinations; 115.22 Policies to ensure referrals of allegations for investigations; 115.32 Volunteer and contractor training; 115.33 Inmate education; 115.34 Specialized training: Investigations; 115.41 Screening for risk of victimization and abusiveness; 115.42 Use of screening information; 115.42 Use of screening information; 115.54 Third-party reporting; 115.61 Staff and agency reporting duties; 115.63 Reporting to other confinement facilities; 115.64 Staff first responder duties; 115.65 Coordinated response; 115.71 Criminal and administrative agency investigations; 115.72 Evidentiary standard for administrative investigations; 115.76 Disciplinary sanctions for staff. Division of Corrections policy is not more stringent than its Federal Counterparts. |
| Agriculture | West Virginia Fish Processing Rules | reference fda codes, equal to federal counterpart |
| Corrections | 325.00 Discipline of Inmates | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.78 Disciplinary Sanctions for Inmates. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Agriculture | West Virginia Shell Fish | reference federal codes, equal to federal counterpart |
| Corrections | 332.03 Zero Tolerance of Sexual Harassment/ PREA Coordinator/PREA Compliance Manager | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.11 Zero Tolerance of Sexual Abuse and Sexual Harassment; PREA coordinator. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.04 Contracting with Other Entities for the Confinement of Inmates | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.12 Contracting with Other Entities for the Confinement of Inmates. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.05 Supervising & Monitoring | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.13 Supervision and monitoring. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.06 Youthful Inmates | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.14 Youthful inmates. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.08 Inmates with Disabilities & Inmates who are Limited English Proficient | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.16 Inmates with Disabilities and Inmates who are limited English proficient.. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.09 Hiring and Promotion Decisions | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.17 Hiring and Promotion Decisions. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.10 Upgrade to Facilities & Technologies | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.18 Upgrades to Facilities and Technologies. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.11 Evidence Protocol & Forensic Medical Examinations | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.21 Evidence Protocol and Forensic Medical Examinations. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.12 Ensuring Referrals of Allegation for Investigations | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.22 Policies to Ensure Referrals of Allegations for Investigations. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.13 Employee Training | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.31 Employee Training. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.14 Volunteer & Contractor Training | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.32 Volunteer and Contractor Training. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.15 Inmate Education | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.33 Inmate Education. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.16 Specialized Training: Investigations | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.34 Specialized Training: Investigations. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.17 Specialized Training: Medical & Mental Health Care | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.35 Specialized Training: Medical and Mental Health Care. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.18 Screening for Risk of Sexual Victimization & Abusivness | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rules: 115.41 Screening for Risk of Victimization and Abusiveness; 115.42 Use of Screening Information. Division of Corrections policy is not more stringent than its Federal Counterparts. |
| Corrections | 332.19 Use of Screening Information | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rules: 115.42 Use of Screening Information. Division of Corrections policy is not more stringent than its Federal Counterparts. |
| Corrections | 332.20 Special Management | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.43 Protective Custody. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.21 Inmate Reporting | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.51 Inmate Reporting. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.21-1 Exhaustion of Administrative Remmedies | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.52 Exhaustion of Administrative Remedies. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.22 Inmate Access to Outside Confidential Support Services/Third Party Reporting | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rules: 115.53 Inmate access to outside confidential support services; 115.54 Third-party reporting. Division of Corrections policy is not more stringent than its Federal Counterparts. |
| Corrections | 332.23 Staff & WVDOC Reporting Duties | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.61 Staff and Agency Reporting Duties. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.24 WVDOC Protection Duties/Reporting to Other Confinement Facilities | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rules: 115.62 Agency Protection Duties; 115.63 Reporting to other Confinement Facilities. Division of Corrections policy is not more stringent than its Federal Counterparts. |
| Corrections | 332.25 Staff First Responder Duties/Coordinated Response | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rules: 115.64 Staff First Responder Duties; 115.65 Coordinated Response. Division of Corrections policy is not more stringent than its Federal Counterparts. |
| Corrections | 332.26 Preservation of Ability to Protect Inmates from Contact with Abuser | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.66 Preservation of Ability to Protect Inmates from Contact with Abusers. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.27 WVDOC Protection Against Retaliation/Post Allegation Special Management | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rules: 115.67 Agency Protection Against Retaliation; 115.68 Post-Allegation Protective Custody. Division of Corrections policy is not more stringent than its Federal Counterparts. |
| Corrections | 332.28 Investigations | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rules: 115.71 Criminal and Administrative Agency Investigations; 115.72 Evidentiary Standard for Administrative Investigations. Division of Corrections policy is not more stringent than its Federal Counterparts. |
| Corrections | 332.29 Reporting to Inmates | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.73 Reporting to Inmates. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.30 Disciplinary Sanctions for Staff | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.76 Disciplinary Sanctions for Staff. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.31 Corrective Action for Contractors/Volunteers | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.77 Corrective Action for Contractors and Volunteers. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.32 Disciplinary Sanctions for Inmates | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.78 Disciplinary Sanctions for Inmates. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.33 Medical & Mental Health Screenings/History of Sexual Abuse | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.81 Medical and Mental Health Screenings; History of Sexual Abuse. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.34 Access to Emergency Medical & Mental Health Services | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.82 Access to Emergency Medical and Mental Health Services. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.35 Ongoing Medical & Mental Health Care for Sexual Abuse Victim & Abuser | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.83 Ongoing Medical and Mental Health Care for Sexual Abuse Victims and Abusers. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.36 Sexual Abuse Incident Review | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.83 Ongoing Medical and Mental Health Care for Sexual Abuse Victims and Abusers. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.37 PREA Date Collection | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.87 Data Collection. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.38 PREA Data Collection for Corrective Action | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.88 Data Review for Corrective Action. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.39 PREA Data Storage, Publication & Destruction | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.89 Data Storage, Publication, and Destruction. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.40 Audits on PREA Standards | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.93 Audits of Standards. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 335.00 Inmate Grievance Procedures | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.52 Exhaustion of Administrative Remedies. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 400.00 Reception, Assessment & Orientation | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rules: 115.16 Inmates with Disabilities and Inmates who are Limited English Proficient; 115.33 Inmate Education; 115.41 Screening for Risk of Victimization and Abusiveness; 115.42 Use of Screening Information. Division of Corrections policy is not more stringent than its Federal Counterparts. |
| Corrections | 401.13 Special Attention Inmates | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rules: 115.41 Screening for Risk of Victimization and Abusiveness; 115.42 Use of Screening Information. Division of Corrections policy is not more stringent than its Federal Counterparts. |
| Corrections | 500.07 Division of Highways Inmate Work Crews | This policy follows the parameters established in it's federal counterpart regulation - Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.32 Volunteer and Contractor Training. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | WV Division of Corrections Religious Handbook | This guideline follows the parameters established in it's federal counterpart regulation - Religious Land Use and Institutionalized Persons Act of 2000. Division of Corrections guideline is not more stringent than its Federal Counterpart. |
| Corrections | 458.00 Application Process for Replacement of Inmate Social Security Cards | This policy follows the parameters established in it's federal counterpart regulation: §§ 205 & 702(a)(5) of the Social Security Act (42 U.S.C. §§ 405 & 902(a)(5)); Section 7213(a) (1) (A) of the Intelligence Reform & Terrorism Prevention Act of 2004 (P.L. 108-458); 20 C.F.R.. Part 422; and the Privacy Act of 1974. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Corrections | 332.07 Limits to Cross-Gender Viewing & Searches | This policy follows the parameters established in it's federal counterpart regulation. Federal PREA Prisons & Jails Standards USDOJ Final Rule: 115.15 Limits to Cross-Gender Viewing and Searches. Division of Corrections policy is not more stringent than its Federal Counterpart. |
| Personnel | DOP-23, Family and Medical Leave Act (FMLA)/Parental Leave Act (PLA) | The West Virginia Division of Personnel’s (DOP) policy, DOP-P23, Family and Medical Leave Act/Parental Leave Act, was found to be the counterpart of the federal Family and Medical Leave Act, 29 USC 2601 et. seq. The DOP did not find any part of this policy to be more stringent than the federal Act and regulations.
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| Personnel | Administrative Rule of the West Virginia Division of Personnel | Section 14 of the Administrative Rule of the West Virginia Division of Personnel was found to be the counterpart of the federal Family and Medical Leave Act, 29 USC 2601 et seq. The Division of Personnel did not find any part of the rule to be more stringent than the federal Act or regulations. |
| Personnel | West Virginia Division of Personnel Reference Guide to the Federal Family and Medical Leave Act & the West Virginia Parental Leave Act | The West Virginia Division of Personnel’s Reference Guide to the Federal Family and Medical Leave Act & the West Virginia Parental Leave Act, was found to be the counterpart of the federal Family and Medical Leave Act, 29 USC 2601 et seq. The Division of Personnel did not find any part of the guidelines to be more stringent than the federal Act or regulations. |
| Personnel | West Virginia Division of Personnel Leave of Absence With and Without Pay Approval/Denial Guidelines | The West Virginia Division of Personnel’s Leave of Absence With and Without Pay Approval/Denial Guidelines document was found to be the counterpart of the federal Family and Medical Leave Act, 29 USC 2601 et seq. The Division of Personnel did not find any part of the guidelines to be more stringent than the federal Act or regulations. |
| Personnel | Administrative Rule of the West Virginia Division of Personnel | Section 14.9 of the Administrative Rule of the West Virginia Division of Personnel, Military Leave, covers parts of the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301 et seq., and the USERRA Final Rule, 20 C.F.R. Part 1002. The Division of Personnel did not find any part of the Administrative Rule to be more stringent than the federal Act or regulations. |
| Personnel | West Virginia Division of Personnel Guide to Verification of Military Orders | The West Virginia Division of Personnel’s Guide to Verification of Military Orders covers parts of the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4301 et seq., and the USERRA Final Rule, 20 C.F.R. Part 1002. The Division of Personnel did not find any part of the guidelines to be more stringent than the federal Act or regulations. |
| Personnel | Administrative Rule of the West Virginia Division of Personnel | Various sections of the Administrative Rule of the West Virginia Division of Personnel reference and cover parts of the federal Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq. The Division of Personnel did not find any part of the rule to be more stringent than the federal Act or regulations. |
| Personnel | West Virginia Division of Personnel policy, DOP-P12, Pay Plan Policy | The West Virginia Division of Personnel policy, DOP-P12, Pay Plan Policy, has sections which reference and cover parts of the federal Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq. The Division of Personnel did not find any part of the policy to be more stringent than the federal Act or regulations. |
| Personnel | West Virginia Division of Personnel Supervisor’s Guide to the Fair Labor Standards Act | The West Virginia Division of Personnel Supervisor’s Guide to the Fair Labor Standards Act, has sections which reference and cover parts of the federal Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq., and the Equal Pay Act, 29 C.F.R. Parts 500 – 899 and 1620.32. The Division of Personnel did not find any part of the guide to be more stringent than the federal Acts or regulations. |
| Personnel | West Virginia Division of Personnel policy DOP-P6, Prohibited Workplace Harassment | The Division of Personnel policy, DOP-P6, Prohibited Workplace Harassment, references many federal statutes, including Title VII of the U. S. Civil Rights Act, as amended, 42 U.S.C. 2000e et seq., Executive Order 11246, as amended, the federal Family and Medical Leave Act, and the Americans with Disabilities Act (and Amendments Act). Though the policy includes provisions pertaining to non-discriminatory hostile workplace harassment (i.e., bullying), the Division of Personnel did not find any part of the policy to be more stringent than any counterpart federal laws. |
| Personnel | West Virginia Division of Personnel Interpretive Bulletin, DOP-B5, Fair Labor Standards Act | The West Virginia Division of Personnel Interpretive Bulletin, DOP-B5, the Fair Labor Standards Act, provides guidance pertaining to the federal Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq. The Division of Personnel did not find any part of the guide to be more stringent than the federal Act or regulations. |
| Secretary Of State | Electioneering Prohibition | CSR § 153-08 is an interpretive rule defining how this agency applies the electioneering prohibitions of W. Va. Code §§ 3-1-37 and 3-9-9. Prior to the 2017 regular session, that Rule alone defined the term “electioneering.” However, after the regular session, that definition was incorporated into W. Va. Code § 3-9-9.
The Rule was placed out for public comment on June 13, 2017. The Rule was circulated among the county election officials seeking input prior to the 30 day comment period. The comment period expired on July 13, 2017 and it was finalized.
Now, the majority of the Rule details the sort of electioneering activities which are permitted or prohibited; how to measure the 100-foot distance from the polling place door; and expands on the private property exemption to the electioneering restricted area.
In the amended W. Va. Code § 3-9-9, the term “electioneering” is defined quite broadly and could be interpreted to include all forms of advocacy (written, spoken, in-person, etc.). However, according to guidance published by the Federal Election Commission (FEC) (guide attached), the term “electioneering” is defined as any broadcast, cable or satellite communication that (1) refers to a clearly identified candidate for federal office; (2) is publicly distributed shortly before an election for the office that candidate is seeking; and (3) is targeted to the relevant electorate (U.S. House and Senate candidates only).
The FEC’s electioneering definition is limited to “broadcast, cable or satellite communications,” while the Code’s definition is much broader and, thus, more stringent on political activity. However, despite the Code’s more restrictive definition of “electioneering,” the Rule doesn’t actually define “electioneering;” it merely interprets and expands on the definition now provided by law.
In conclusion, though prior to the 2017 regular session CSR § 153-08 would be considered more stringent than the FEC’s definition of “electioneering,” the current Rule is not more stringent than any known federal rules, guidance, guides, etc. |
| Alcohol Beverage Control Commission | Sale of Wine | The 21st Amendment to the U. S. Constitution gave each state the right to regulate the sale of alcohol. This rule regulates private wine restaurants, private wine spas, private wine bed and breakfasts, wine retailers, wine specialty shops and direct shippers at retail. Wine retail on and off premises licenses exist due to the requirements in the W.Va. Constitution Art VI., §46. This rule also regulates wineries, wine suppliers and wine distributors where there is some overlap under federal law, however, federal and state law look at the same and different items but at different degrees such as labeling, importing/exporting and product testing/requirements versus licensure of locations and production, distribution and transportation of wine. There may be differing views of whether state and federal are both more stringent or less stringent. Note there is a federal tax on wine in addition to a state tax on wine. Federal law also deals with Trade Practice issues (via Tied House laws and other areas) but this is viewed as in conjunction with the state law. The West Virginia Code and rules are meant to regulate and control the manufacture, sale, distribution, transportation, storage and consumption of wine and at the same time ensure the greatest degree of personal freedom consistent with the health, safety, welfare, peace and good morals of the people of this state. Further the state has pledged the state’s police powers to the sound control and temperate use of wine. No review was made of agricultural requirements or requirements in other areas of federal law not directly related to wine regulation.
One area where state law is perhaps more stringent is the lack of authorization to permit wine alternating proprietorships (where a winery could be used by multiple entities to produce separate wine or cider) in the state but such arrangements are permitted at the federal level (See 27 CFR 1, Subchapter A, Part 24, Subpart D §24.135, 24.136 and 24.137) (See also Industry Circular 2008-4 (August 18, 2008)).
The WVABCA has attempted to pass legislation during past legislative sessions to regulate this issue at the state level but without success.
No review was made of agricultural requirements or requirements in other areas of federal law not directly related to wine regulation.
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| Alcohol Beverage Control Commission | Cigarettes Produced for Export; Imported Cigarettes. | This rule prescribes certain requirements for the WVABCA and the WV State Tax Department. The rule regulates cigarettes produced for export and imported cigarettes. Based on a cursory review of Title 26 USC Chapter 52 §5701-5763 (See also 27 CFR 1, Subchapter B, Part 40, 41 and 46) it appears the federal law works in conjunction with state law with respect to these requirements and the cigarettes are a taxed product. It is not clear whether the state law is more stringent than the federal law, therefore this rule was included in the report
It is the WVABCA’s understanding that this issue is not currently enforced by the WVABCA due to a loss of funding at the federal and state levels.
There may also be some preemption by law with statutes at W. Va. Code §16-9D-1 et seq. and §16-9b-1 et seq. |
| Alcohol Beverage Control Commission | Prohibiting Sales of Tobacco Products in Vending Machines | This rule prescribes certain requirements for the WVABCA and the WV State Tax Department. The rule regulates cigarette vending machines and the WVABCA’s involvement deals with Class A Establishments only. Based on a cursory review of Title 26 USC Chapter 52 §5701-5763, (See also 27 CFR 1, Subchapter B, Part 40, 41 and 46) it appears the federal law works in conjunction with state law with respect to cigarette vending machines and they are a taxed product. It is not clear whether state law is more stringent than federal law, therefore the rule was included in this report.
This rule attempts to create a process for using cigarette vending machines and a penalty for failing to follow the requirements.
It is the WVABCA’s understanding that this issue is not currently enforced by the WVABCA due to a loss of funding at the federal and state levels.
There may also be some preemption by law with statutes at W. Va. Code §16-9D-1 et seq. and §16-9b-1 et seq. |
| Alcohol Beverage Control Commission-Beer | Nonintoxicating Beer Licensing and Operations procedures | The 21st Amendment to the U. S. Constitution gave each state the right to regulate the sale of alcohol. This rule regulates Taverns and Class B retailers at retail. Nonintoxicating Beer retail on and off premises licenses exist due to the requirements in the W.Va. Constitution Art VI., §46. This rule also regulates brewer/importers and nonintoxicating beer distributors where there is some overlap under federal law, however, federal and state law look at the same and different items but at different degrees such as labeling, importing/exporting and product testing/requirements versus licensure of locations, production, alcohol percentage of nonintoxicating beer, distribution and transportation of nonintoxicating beer. There may be differing views of whether state and federal law are both more stringent or less stringent. There is federal tax on nonintoxicating beer and a state tax on nonintoxicating beer. There no state transportation permit for nonintoxicating beer but there is under federal law. Federal law also deals with Trade Practice issues (via Tied House laws and other areas) but this is viewed in conjunction with state law. The West Virginia Code and rules are meant to regulate and control the manufacture, sale, distribution, transportation, storage and consumption of nonintoxicating beer and at the same time provide protection of public safety, welfare, health, peace and good morals. Further the WVABCA has the state’s police powers to protect against the evils attendant to the unregulated, unlicensed and unlawful manufacture, sale, distribution, transportation, storage and consumption of nonintoxicating beer and further are intended to promote the temperate use and consumption of nonintoxicating beer. No review was made of agricultural requirements or requirements in other areas of federal law not directly related to beer regulation.
One area of the law where the state may be more stringent is with home brew beer. Federal law (See 27 CFR 1, Subchapter A, part 25, Subpart L §25.205, §25.206 and §25.207) permits up to 100 gallons per adult/per household of home beer to be brewed for personal (family) use and not for resale. WV law follows federal law by allowing home brew beer, however federal law permits home brewed beer competitions (with no federal guidelines) while state law does not permit these events because the home brewed beer is not tested for safety and alcohol content, and further is unlicensed and unregistered beer which cannot be safely served to the public. The WVABCA has worked with the Legislature on legislation attempting to address the issue but the safety issues versus the minimal expense of licensure have not been resolved.
Another issue is alternating proprietors at brewery premises (licensed). The WVABCA permits contract brewing but has no license to share a licensed premises between 2 brewers. Federal law permits this at 27 CFR 1, Subchapter A, Part 25, Subpart G, §25.81 and Industry Circular 2005-2 (August 12, 2005). Legislation would need to be added to change this requirement.
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| Labor | Steam Boiler Inspection | The Division of Labor determined that the Steam Boiler Inspection rule is equal to its Federal counterpart because it follows the parameters set forth in 29 CFR Subpart C, General Safety and Health Provisions found in 29 CFR §1926.29, "Acceptable Certifications for Pressure Vessel Inspections. The Steam Boiler Inspection rule also adopts by reference the American Society of Mechanical Engineers (ASME) Boiler and Pressure Vessel Code and the National Board of Boiler and Pressure Vessel Inspectors Inspection Code (NBIC).
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| Labor | Hazardous Chemical Substances | The Division of Labor determined that the Hazardous Chemical Substances rule is equal to its Federal counterpart because it adopts by reference 29 CFR 1910.1000, Subpart Z, Toxic and Hazardous Substances.
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| Labor | Minimum Wages, Maximum Hours, and Overtime Compensation | The Division of Labor determined that the Minimum Wages, Maximum Hours and Overtime Compensation rule is equal to its Federal counterparts because it follows the applicable parameters established in 29 U.S.C. §203 (Definitions), 29 CFR Part 516 (Records to be Kept by Employers), 29 CFR Part 531 (Wage Payments Under the Fair Labor Standards Act), 29 CFR Part 541 (Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Computer and Outside Sales Employees), 29 CFR Part 553 (Application of the Fair Labor Standards Act to Employees of State and Local Governments), 29 CFR Part 778 (Overtime compensation), and 29 CFR Part 779 (the Fair Labor Standards Act as Applied to Retailers of Goods or Services).
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| Labor | Child Labor | The Division of Labor determined that the Child Labor rule is equal to its Federal counterparts because it adopts by reference 29 CFR Part 570, Subpart B (Certificates of Age), 29 CFR Part 570, Subpart C (Employment of Minors Between 14 and 16 Years of Age), 29 CFR Part 570, Subpart E (Occupations Particularly Hazardous for the Employment of Minors Between 16 and 18 Years of Age or Detrimental to their Health or Well-being); and 29 CFR Part 570, Subpart G (Oppressive Child Labor).
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| Labor | West Virginia Occupational Safety and Health Act | The Division of Labor determined that the West Virginia Occupational Safety and Health Act rule is equal to its Federal counterpart because it adopts by reference 29 CFR 1900-1999.
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| Labor | Standards for Weights and Measures Inspectors - Adoption of National Conference of Weights and Measures (NCWM) Handbook 130 | The Division of Labor determined that the Standards for Weights and Measures Inspectors – Adoption of National Conference of Weights and Measures (NCWM) Handbook 130 rule is equal to its Federal counterpart because it adopts by reference the National Institute of Standards and Technology Handbook 130, Uniform Laws and Regulations in the Areas of Legal Metrology and Engine Fuel Quality. The National Institute of Standards and Technology ("NIST") is an agency of the United States Department of Commerce.
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| Labor | West Virginia Manufactured Housing Construction and Safety Standards Board | The Division of Labor determined that the West Virginia Manufactured Housing Construction and Safety Standards Board rule is equal to its Federal counterparts because it adopts by reference 24 CFR Part 3280 (Manufactured Home Construction and Safety Standards), 24 CFR Part 3282 (Manufactured Home Procedural and Enforcement Regulations), 24 CFR Part 3285 (Model Manufactured Home Installation Standards), 24 CFR Part 3286 (Manufactured Home Installation Program), and 24 CFR Part 3288 (Manufactured Home Dispute Resolution Program).
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| Labor | Regulation of Trade - Weights and Measures | The Division of Labor determined that the Regulation of Trade - Weights and Measures rule is equal to its Federal counterparts because it adopts by reference the National Institute of Standards and Technology Handbook 130, Uniform Laws and Regulations in the Areas of Legal Metrology and Engine Fuel Quality and requires that all weighing and measuring devices meet or exceed the applicable requirements of the National Institute of Standards and Technology Handbook 44, Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices. The National Institute of Standards and Technology ("NIST") is an agency of the United States Department of Commerce. |
| Labor | Crane Operator Certification Act | The Division of Labor determined that the Crane Operator Certification Act rule is equal to its Federal counterpart because it follows the parameters of 29 CFR 1926, Subpart CC, Cranes and Derricks in Construction (§1926.1427, Operator qualification and certification). |
| Environmental Protection - Secretary's Office | Requirements Governing Water Quality Standards, 47 CSR 2 | While there is no federal counterpart regulation for this rule, EPA does propose “recommended criteria” for water quality standards through 40 CFR Parts 405–471, and the states can either adopt those recommended criteria or establish their own criteria based on conditions specific to each state. To see a comparison of specific of EPA recommended criteria to WV standards, go here: http://dep.wv.gov/pio/Documents/Settlements and Orders/WQS Analysis.pdf
Similar Federal Regulation: § 303 of the Clean Water Act (33 USC § 1313)
The scope of this rule is as follows:
These rules establish requirements governing the discharge or deposit of sewage, industrial wastes and other wastes into the waters of the state and establish water quality standards for the waters of the State standing or flowing over the surface of the State. It is declared to be the public policy of the State of West Virginia to maintain reasonable standards of purity and quality of the water of the State consistent with (1) public health and public enjoyment thereof; (2) the propagation and protection of animal, bird, fish, and other aquatic and plant life; and (3) the expansion of employment opportunities, maintenance and expansion of agriculture and the provision of a permanent foundation for healthy industrial development. (See W. Va. Code §22-11-2.) |
| Environmental Protection - Secretary's Office | Rules for Individual State Certification of Activities Requiring a Federal Permit, 47 CSR 5A | This rule is more stringent than its federal counterpart in three areas:
(1) Wetlands mitigation (3:1 vs 1:1). WV’s rule is more stringent in this area, because the State determined that manmade wetlands rarely function as well as natural ones, and they take time to mature.
(2) Barge fleeting mitigation. This area is more stringent because barge fleeting areas restrict/eliminate acres of fishable water, and propwash damages fish nesting sites.
(3) Impingement/entrainment of fish at FERC hydropower facilities. This area is more stringent, because a previous federal court ruling stated impacts to a fishery must occur before mitigation; this provision in the State rule makes it clear we are concerned about impacts to each fish.
Federal Counterpart Regulation: 33 CFR Parts 325 and 332 and 40 CFR Part 230
The scope of this rule is as follows: The purpose of this legislative rule is to carry out the responsibilities placed upon the State
by Section 401 of the Federal Clean Water Act, 33 U.S.C. §1341 and W. Va. Code §§22-1-6(d)(7) and 22-11-
7(a). Section 401 of the Clean Water Act requires that any applicant for a federal license or permit to conduct
an activity that will or may discharge into waters of the United States (as defined in the Clean Water Act) to
present the federal authority with a certification from the appropriate state agency. This rule establishes the
procedures and criteria for the application, processing and review of state water quality certifications that
require a federal permit including those from the United States Army Corps of Engineers under Section 404 of
the Clean Water Act, 33 U.S.C. §1344; Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. §403;
and licenses issued by the Federal Energy Regulatory Commission under the Federal Power Act, 16 U.S.C.
§1791 et. seq. |
| Environmental Protection - Secretary's Office | Solid Waste Management Rule, 33 CSR 1 | This rule is not more stringent that its federal counterpart; rather, the rule follows the parameters established in its federal counterpart regulation.
Federal Counterpart Regulation: 40 CFR Parts 239 - 258
The scope of this rule: This legislative rule establishes requirements for the siting (including location
standards), financial assurance, installation, establishment, construction, design, groundwater monitoring,
modification, operation, permitting, closure and post-closure care of any solid waste facility that
processes, recycles, composts, transfers or disposes of solid waste pursuant toW. Va. Code §22-15-1 et
seq. This rule applies to any person who owns or operates a solid waste facility or who is responsible for
the processing, composting, commercial recycling, transfer or disposal of solid waste, except for those
recycling facilities exempted from permitting requirements as authorized by W. V a. Code §20-11-12. |
| Public Energy Authority | Rules And Procedures For The Exercise Of The Powers Of Eminent Domain For Qualified Projects | This rule is not more stringent than its federal counterpart. |
| Public Energy Authority | Rules And Procedure For Application For And Environmental Assessment Of Projects Seeking Qualifications For PEA's Assistance | This rule is not more stringent than its federal counterpart. |
| Waste Management, Division Of Water And Waste Management | Hazardous Waste Management System | This rule establishes and adopts a program of regulation for the generation, treatment, storage, and disposal of hazardous waste to the extent necessary for the protection of the public health and safety and the environment. This rule incorporates by reference its federal counterpart: 40 CFR Parts 260 – 279
Section 4 of this rule subjects conditionally exempt small quantity generators of hazardous waste (CESQG) to notification requirements that are not part of the federal counterpart regulation. West Virginia solid waste rules restrict disposal of hazardous waste in municipal and non-hazardous waste industrial landfills. Requiring CESQGs to register helps to ensure hazardous waste is not disposed of in a landfill that is not permitted to accept it.
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| Waste Management, Division Of Water And Waste Management | Underground Storage Tanks | This legislative rule governs the construction, installation, upgrading, use, maintenance, testing, and closure of underground storage tanks in this State. This rule was not determined to be more stringent than its federal counterpart. This rule incorporates by reference its federal counterpart: 40 CFR Part 280 – 282. No comments were received about this rule. |
| Miners' Health, Safety And Training | Procedures and Practice Before the Board of Appeals | This series sets forth the hearing procedures each party must follow during a contested administrative case. West Virginia Office of Miners’ Health, Safety and Training’s hearing procedures and Mine Safety and Health Administration’s hearing procedures are similar. Both generally follow standard administrative law procedures.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/SB%20619.pdf.
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| Miners' Health, Safety And Training | Temporary Suspension of Certificates | This rule is more strict than the Mine Safety and Health Administration’s (MSHA) regulations. MSHA does not have a certification process to certify miners in each particular coal mine specialty. Therefore, MSHA does not have the need to temporarily decertify those certifications when a miner commits a serious safety violation.
This rule was created in response to the West Virginia Supreme Court’s decision in Perry v. Miller, 171 W. Va. 509, 300 S.E.2d 622 (1983).
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Miners' Health, Safety And Training | Standards for Certification of Underground Belt Examiners for Underground Coal Mines | This rule is more strict than Mine Safety and Health Administration’s (MSHA) because MSHA has no certification process for belt examiners.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Miners' Health, Safety And Training | Safety Training Program for Prospective Underground Coal Miners | This rule is more strict than Mine Safety and Health Administration’s (MSHA). West Virginia Office of Miners’ Health, Safety and Training requires 80 hours of training. MSHA requires only 40 hours.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Miners' Health, Safety And Training | Safety Training Program for Prospective Surface Coal Miners | This rule is more strict because the West Virginia Office of Miners’ Health, Safety and Training (WVOMHST) provides a training and certification process for surface apprentice miners and surface experienced miners. Mine Safety and Health Administration does not have this authority and accepts WVOMHST’s miner certificates.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Environmental Protection - Secretary's Office | Sewage Sludge Management Rule | This legislative rule establishes requirements for the permitting siting, bonding, installation, establishment, construction, modification, and operation of any facility that generates, processes, recycles and/or disposes of sewage sludge by whatever means, including, but not limited to, land application, composting, incineration, mixed waste composting, or any other method of handling sewage sludge within the state. This rule applies to any person who owns or operates a sewage sludge facility or who is responsible for the processing or disposal of sewage sludge.
This rule follows the parameters established in its federal counterpart regulation.
Federal Counterpart Regulation: 40 CFR Part 503 |
| Environmental Protection - Secretary's Office | Administrative Proceedings and Civil Penalty Assessment | This rule establishes a procedure for the resolution of enforcement actions and the assessment of civil penalties in lieu of the institution of a civil action as provided in W. Va. Code § 22-11-22.
This rule follows the parameters established in its federal counterpart regulation and is, thus, consistent with the federal program.
Federal Counterpart Regulation: § 309(g) of the Clean Water Act (33 USC § 1319(g)) |
| Environmental Protection - Secretary's Office | National Pollutant Discharge Elimination System (NPDES) Program | This legislative rule establishes requirements governing the State National Pollutant Discharge Elimination System (NPDES) Program.
This rule follows the parameters established in its federal counterpart regulation.
Federal Counterpart Regulation: 40 CFR Part 122 - 125 |
| Miners' Health, Safety And Training | Initial Training Program for Prospective Mine Rescue Team Members and Additional Mine Rescue Requirements | The West Virginia Office of Miners’ Health, Safety and Training’s (WVOMHST) rule is similar to Mine Safety and Health Administration’s. However, WVOMHST does require more training and has a 50 year age limit to initially become a mine rescue team member.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Miners' Health, Safety And Training | Certification of Surface Mine Foreman | This rule is more strict than Mine Safety and Health Administration’s (MSHA). MSHA has no regulations on the certification of surface mine foremen.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Miners' Health, Safety And Training | Standards for Certification of Coal Mine Electricians | This rule is more strict than the Mine Safety and Health Administration (MSHA). West Virginia Office of Miner’s Health, Safety and Training requires a person desiring to become a coal mine electrician to participate in an apprenticeship program and ultimately pass an electrical test. MSHA does not.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Environmental Protection - Secretary's Office | Underground Injection Control | These rules set forth criteria and standards for the requirements which apply to the State Underground Injection Control Program (U.I.C.). The UIC permit program regulates underground injections by five (5) classes of wells. The five (5) classes of wells are set forth in section 4 of this rule. All owners or operators of these injection wells must be authorized either by permit or rule by the Director.
This rule is not more stringent than its federal counterpart regulation.
This rule follows the parameters established in its federal counterpart regulation.
Federal Counterpart Regulation: 40 CFR Parts 144 – 148 |
| Miners' Health, Safety And Training | Criteria and Standards for Alternative Training Programs for Apprentice Coal Mine Electricians | This rule is an alternative method to the requirements found in Title 48, Series 7, on becoming a coal mine electrician. Mine Safety and Health Administration has no alternative method. Therefore, this rule is more strict.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Miners' Health, Safety And Training | Procedures and Practice Before the Department of Energy | This rule is similar to Mine Safety and Health Administration’s (MSHA) rule setting forth the procedures a coal operator (or miner) uses to contest a violation. However, the monetary amounts MSHA assesses to its violations are significantly greater than the monetary amounts the West Virginia Office of Miners’ Health, Safety and Training assesses to its violations.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf. |
| Environmental Protection - Secretary's Office | State Water Pollution Control Revolving Fund | This legislative rule establishes requirements to govern the disbursement and use of loans from moneys held in the state Water Pollution Control Revolving Fund. Such loans shall be made to local entities for the planning, design, acquisition, or construction of wastewater treatment works, for the implementation of point and nonpoint source control management programs, and for the development and implementation of water conservation and management plans.
This rule is not more stringent than its federal counterpart regulation.
This rule follows the parameters established in its federal counterpart regulation.
Federal Counterpart Regulation: 40 CFR Part 35 |
| Miners' Health, Safety And Training | Safety Provisions for Clearing Crews | This rule is more strict because Mine Safety and Health Administration has no applicable rule for clearing crews on mine property.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Miners' Health, Safety And Training | Safety of Those Employed in and Around Surface Mines | This rule is more strict than Mine Safety and Health Administration’s counterpart.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Miners' Health, Safety And Training | Protective Clothing and Equipment | This rule is slightly more strict than Mine Safety and Health Administration’s.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Miners' Health, Safety And Training | Submission and Approval of a Comprehensive Mine Safety Program for Coal Mine Operations | This rule is similar to Mine Safety and Health Administration’s.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Miners' Health, Safety And Training | Reporting Requirements for Independent Contractors | This rule is similar to Mine Safety and Health Administration’s (MSHA). West Virginia Office of Miners’ Health, Safety and Training requires quarterly reporting of total number of employees working at a mine, the hours worked, total reported accidents and injuries. MSHA requires a registry to be maintained by the production operator to document addresses of record, telephone numbers, trade names, description of the work to be performed and location of the mine.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Environmental Protection - Secretary's Office | Dam Safety Rule | This legislative rule establishes requirements relating to the design, placement, construction, enlargement, alteration, removal, abandonment, and repair of dams in this State that fall within the definition set forth in 2.12. This legislative rule also establishes requirements to govern the disbursement and use of moneys held in the State Dam Safety Rehabilitation Revolving Fund. The scope does not extend to those dams that are related to coal activities.
This rule is not more stringent than its federal counterpart regulation.
This rule follows the parameters established in its federal guidance.
Federal Guidance: FEMA’s Federal Guidelines for Dam Safety Risk Management |
| Miners' Health, Safety And Training | First-Aid Training of Shaft and Slope Employees | Mine Safety and Health Administration has no specific regulations on first aid training for shaft and slope employees.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Environmental Protection - Secretary's Office | Antidegredation Implementation Procedures | This rule establishes the procedures by which the Department of Environmental Protection shall implement the State’s water quality anti-degradation policy found at 47 CSR 2-4.
This rule is not more stringent than its federal counterpart regulation.
Similar Federal Regulation: While there is not federal counterpart regulation for this rule, EPA required states to develop antidegradation policies through 40 CFR Part 131, and West Virginia developed this rule in accordance with the parameters established pursuant to the federal regulation. |
| Miners' Health, Safety And Training | Assessing Health and Safety Violations | This rule is similar to Mine Safety and Health Administration’s (MSHA). However, MSHA’s monetary penalties are far greater.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Miners' Health, Safety And Training | Drug Testing of Mine Inspectors and Mine Safety Instructors | This rule is more strict than Mine Safety and Health Administration’s (MSHA). MSHA law does not require drug testing its inspectors.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Miners' Health, Safety And Training | Application Process for the West Virginia Innovative Mine Safety and Technology Tax Credit Act | Mine Safety and Health Administration has no innovative mine safety technology tax credit.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Miners' Health, Safety And Training | Organization and Implementation Procedures for Control of Coal Dust, Rock Dust Standards | This rule and Mine Safety and Health Administration’s are similar on rock dust standards.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Miners' Health, Safety And Training | Program for the Sharing of Information Between Employers | Mine Safety and Health Administration does not require coal miners to be drug tested and has no comparable rule regarding sharing this information with coal operator employees.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Miners' Health, Safety And Training | Substance Abuse Screening, Standards and Procedures | This rule is more strict than Mine Safety and Health Administration’s (MSHA). MSHA does not require coal miners to be drug tested.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Miners' Health, Safety And Training | Safety of Those Employed in and Around Quarries in West Virginia | This rule is more strict than Mine Safety and Health Administration’s.
For a more complete analysis of the differences, a detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Miners' Health, Safety And Training | Self-Contained Self-Rescue Device Immediate Reach Interpretive Rule | This rule is more strict than Mine Safety and Health Administration’s (MSHA). West Virginia Office of Miners’ Health, Safety and Training requires a miner to keep his self-rescuer within three feet. MSHA allows twenty-five feet.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Miners' Health, Safety And Training | Certification, Recertification and Training of EMT-Miners and the Certification of EMT-M Instructors | This rule is much more strict that Mine Safety and Health Administration’s (MSHA). MSHA law does not address the certification or training of emergency medical technicians in coal mines.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf. |
| Miners' Health, Safety And Training | Operating Diesel Equipment in Underground Mines in West Virginia | This rule is similar to Mine Safety and Health Administration’s.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Miners' Health, Safety And Training | Procedures and Practice before the Board of Appeals | This series sets forth the hearing procedures each party must follow during a contested administrative case. West Virginia Office of Miners’ Health, Safety and Training’s hearing procedures and Mine Safety and Health Administration’s hearing procedures are similar. Both generally follow standard administrative law procedures.
A more detailed spreadsheet is available at http://www.wvminesafety.org/PDFs/S.B.%20619%20%20Final.pdf.
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| Rehabilitation Services | Client Services Manual | The Division of Rehabilitation Services' Case Services Manual is consistent with federal regulations and is not more stringent than its federal counterpart. |
| Administration | Crew Scheduling/Flight and Duty Time Limitations | *This report is for the Aviation Division within the Department of Administration.
The operations of the Aviation Division are regulated by Part 91 of the Federal Aviation Administration (FAA) regulations, as a small private air operation. Part 91 has no restrictions on continuous flight time or duty time for pilots operating private flights. However, as a safety precaution, the Aviation Division has adopted an operations manual that mirrors the requirements of Part 135, charter flight operations, for purposes of continuous flight time and continuous duty time limitations for pilots. The Aviation Division limits a one-pilot crew to 8 hours of continuous flight time, and a two-pilot crew to 10 hours of continuous flight time. And limits total duty time (on-duty time before a rest period) to 14 hours for all pilots, consistent with the FAA regulations for charter flights. Thus, the Aviation Division's operations manual guideline, 3-17 Crew Scheduling/Flight and Duty Time, is more stringent that the federal counterpart, which is silent as to flight time and duty time limitations on pilots. |
| Prosecuting Attorneys Institute | Payment for Costs of Forensic Examinations | The Prosecuting Attorneys Institute (hereinafter the "Institute") has one set of procedural rules, 168CSR1. This set of rules relates to the procedure for the reimbursement to licensed medical facilities of basic costs associated with the forensic examination of victims of sexual offenses and they are derivative of WV Code §61-8B-16, “Payment for costs of Forensic Examination”.
The Statutes, among other things, provides that payment from the fund shall cover all reasonable and customary costs of a forensic examination [§61-8B-16 (a)(1)] and that neither victims, or their insurance, will be billed for the forensic examination [§61-8B-16 (b)].
Although the WVPAI’s rule, 168CSR1, includes language that mirrors these two statutory provisions the remainder of the rule merely sets out the procedure for reimbursement and the duties of the various parties impacted by the statute and the rule such as licensed medical facilities, the Institute, law enforcement etc..
Reference to Forensic Medical Examination Payments in the Federal Code of Regulations and the United States Code.
42 U.S. Code §3796gg requires states, among others, who wish to be eligible to apply for and receive certain federal grant funds to arrange for victims to receive forensic medical examination free of charge. Echoing this requirement, 28 CFR- §90.13 (b) defines this by use of the phrase “full out of pocket costs” as “any expense that may be charged to a victim in connection with a forensic medical examination for the purpose of gathering evidence of a sexual assault” and requires a participating state to absorb these costs.
Summary
The forgoing two references are the only identifiable federal references which relate specifically to forensic medical examinations and, as can be seen comparison of the federal rule to the state rule reveals that the state rule is not more restrictive than its federal counterpart with respect to the only commonality that they share which is the requirement that victims of sexual offenses will not bear any financial burden related to forensic medical examinations they receive.
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| Natural Resources | Commercial Whitewater Outfitters | This rule is similar but not more stringent than federal counterparts.
This rule includes parameters set by the US Coast Guard for personal flotation devices.
Similar Federal Regulation: Federal Code does not address whitewater activities. |
| Natural Resources | Special Boating Rule for Jennings Randolph lake | This rule is similar but not more stringent than Federal Counterparts. This rule establishes joint regulations for US Army Corps of Engineers Lake, Jennings Randolph Lake, with common boundaries between West Virginia and Maryland. Federal Code establishes maximum blood alcohol content at .08 for Boating Under the Influence (BUI) violations. Maryland law is more stringent than federal code and establishes a maximum blood alcohol content of .07 for BUI violations. Under the cooperative agreement with Maryland, West Virginia enforced Maryland BUI standard of .07 on this lake. All other BUI violations within the state use the Federal standard for BUI of .08. |
| Natural Resources | WIldlife Damage Control Agents | This rule is similar but not more stringent than Federal Counterparts. This rule incorporates species as designated by the Endangered Species Act of 1973. |
| Agriculture | Animal Disease Control | Is not more stringent than federal counterpart. |
| Agriculture | Feeding of Untreated Garbage to Swine | Is not more stringent than federal counterpart. |
| Agriculture | Disposal of Dead Poultry | Is no more stringent than federal counterpart. |
| Agriculture | Inspection of Meat & Poultry | The rule incorporates by reference the mandatory meat inspection regulations and mandatory poultry products regulations from the Code of Federal Regulations that are applicable to the state program.
They are not more stringent. |
| Agriculture | Licensing and Other Fees | The rule describes fees for the licensing of slaughter and processing establishments. This rule could be considered to be more stringent than the federal counterpart since the federal government does not have a fee for their equivalent licenses. |
| Agriculture | Inspection of Nontraditional, Domesticated Animals | The parts of this rule that have Federal counterparts have been incorporated by reference from the Code of Federal Regulations. They are not more stringent. |
| Natural Resources | Boating Rule | This rule is similar but not more stringent than Federal counterparts. This rule follows the parameters set by the US Coast Guard for navigation rules, equipment requirements and accident reporting. |
| Natural Resources | Special Boating Rule | This rule is similar but not more stringent than Federal Counterparts. This special rule relates to limitation, restriction and prohibition of the operation and navigation of motorboats and other vessels on particular government-owned reservoirs. |
| Natural Resources | Special Motorboating Rule | This rule is similar but not more stringent than Federal counterparts. The rule establishes regulations which apply to navigable water regulations established by the US Coast Guard and establishes no wake zones on navigable waters not addressed by Federal regulations. |
| Natural Resources | Special Requirements Concerning Boating | This rule is similar but not more stringent than Federal Counterparts. This rule refers to parameters set by the US Coast Guard for approved personal flotation devices, however, Federal Code does not address cold water mandatory wear on state waters. |
| Natural Resources | Cooperation with Federal Government in Management of Federal Lands within the State | This rule is similar but not more stringent than Federal Counterparts (36 CFR 261.13). This rule establishes the cooperation between state law enforcement and federal agencies in accordance with §20-1-18C. |
| Natural Resources | Defining the Terms used in all Hunting and Trapping | This rule is similar but not more stringent than Federal Counterparts. This rule incorporates by reference its Federal Counterpart, the Endangered Species Act of 1973.
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| Natural Resources | Prohibitions when Hunting and Trapping | This rule is similar but not more stringent than Federal Counterparts. This rule incorporates by reference its Federal Counterpart, 36 CFR 2.1 |
| Natural Resources | General Trapping | This rule is similar but not more stringent than Federal Counterparts. This rule incorporates by reference its Federal Counterparts, 36 CFR 2.1 abd 36 CFR 2.2 |
| Risk And Insurance Management | West Virginia Executive Branch Privacy Policy: Accountability, Policy No: WVEB-P101 | This policy requires that each department assign roles and responsibilities to ensure application of privacy principles to Personally Identifiable Information. It also requires workforce training, confidentiality agreements, sanctions, incident reporting and response, and compliance.
West Virginia Executive Branch Privacy policy and procedure is not based on any one federal or state privacy law. This privacy policy/procedure materially addresses the various requirements of the majority of the laws and regulations with which the West Virginia Executive Branch must comply and serves as a foundation or baseline. There are twenty-four related federal laws and twenty-eight state laws that govern various aspects of the West Virginia Executive Branch privacy program.
Summaries of West Virginia’s Privacy Requirements may be found at
http://privacy.wv.gov/SiteCollectionDocuments/Legal/2016%20Privacy%20Requirements%20FINAL.pdf
This policy is not more stringent than similar federal law.
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| Risk And Insurance Management | West Virginia Executive Branch Privacy Procedure: Response to Unauthorized Disclosures, Procedure No: WVEB-P101.1 | This procedure provides the basis for an appropriate response to events that may expose personally identifiable information (PII) to unauthorized internal or external persons. It includes procedures for breaches of protected health information (PHI), pursuant to HIPAA. PHI is a subset of PII. It provides instructions on how to file an incident report and includes a link to an online portal through which reports are to be made.
West Virginia Executive Branch Privacy policy and procedure is not based on any one federal or state privacy law. This privacy policy/procedure materially addresses the various requirements of the majority of the laws and regulations with which the West Virginia Executive Branch must comply and serves as a foundation or baseline. There are twenty-four related federal laws and twenty-eight state laws that govern various aspects of the West Virginia Executive Branch privacy program. The Appendix to the procedure regarding HIPAA incident response complies with the HIPAA Privacy Rule. 45 CFR Part 164.
Summaries of West Virginia’s Privacy Requirements may be found at http://privacy.wv.gov/SiteCollectionDocuments/Legal/2016%20Privacy%20Requirements%20FINAL.pdf
This procedure is not more stringent than similar federal law.
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| Risk And Insurance Management | West Virginia Executive Branch Privacy Policy: Execution of Confidentiality Agreements, Procedure No: WVEB-P101.2 | This procedure requires all members of the workforce of Departments within the West Virginia Executive Branch to sign the West Virginia Executive Branch Confidentiality Agreement (Agreement). The Agreement requires the members to handle confidential information in accordance with policy; provides notice of potential disciplinary action, including dismissal; and binds the member to continue the protection of confidential information after termination of the workforce relationship.
West Virginia Executive Branch Privacy policy and procedure is not based on any one federal or state privacy law. This privacy policy/procedure materially addresses the various requirements of the majority of the laws and regulations with which the West Virginia Executive Branch must comply and serves as a foundation or baseline. There are twenty-four related federal laws and twenty-eight state laws that govern various aspects of the West Virginia Executive Branch privacy program.
Summaries of West Virginia’s Privacy Requirements may be found at http://privacy.wv.gov/SiteCollectionDocuments/Legal/2016%20Privacy%20Requirements%20FINAL.pdf
This procedure is not more stringent than similar federal law.
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| Risk And Insurance Management | West Virginia Executive Branch Privacy Guidance: Privacy Impact Assessment, Guidance No: WVEB-P101.3 | The purpose of this document and process is to serve as an educational resource and best practices guide for all West Virginia Executive Branch Departments to efficiently and properly perform Privacy Impact Assessments (PIA). A PIA is used to assess the privacy impact and risks to PII stored, used and exchanged by information systems. This guide illustrates when to conduct a PIA and the steps needed to support and assist departments in PIA preparation and implementation activities. As such it is a risk tool to provide accountability for privacy program compliance.
West Virginia Executive Branch Privacy policy and procedure is not based on any one federal or state privacy law. This privacy policy/procedure materially addresses the various requirements of the majority of the laws and regulations with which the West Virginia Executive Branch must comply and serves as a foundation or baseline. There are twenty-four related federal laws and twenty-eight state laws that govern various aspects of the West Virginia Executive Branch privacy program.
Summaries of West Virginia’s Privacy Requirements may be found at http://privacy.wv.gov/SiteCollectionDocuments/Legal/2016%20Privacy%20Requirements%20FINAL.pdf
This guidance is not more stringent than similar federal law.
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| Risk And Insurance Management | West Virginia Executive Branch Privacy Policy: Consent, Policy No: WVEB-P102 | This policy requires each department to provide individuals with a reasonable opportunity to object to the collection, use or disclosure of their Personally Identifiable Information (PII). It requires each department to make reasonable accommodations to the concern raised by an individual regarding their PII. It prohibits a department’s collection, use or disclosure of PII, that is inconsistent with its notice, unless it has first obtained the individual’s additional consent for the use or disclosure, unless the additional use is required by law. This expressly prohibits marketing products or services to individuals without the proper consent.
West Virginia Executive Branch Privacy policy and procedure is not based on any one federal or state privacy law. This privacy policy/procedure materially addresses the various requirements of the majority of the laws and regulations with which the West Virginia Executive Branch must comply and serves as a foundation or baseline. There are twenty-four related federal laws and twenty-eight state laws that govern various aspects of the West Virginia Executive Branch privacy program.
Summaries of West Virginia’s Privacy Requirements may be found at http://privacy.wv.gov/SiteCollectionDocuments/Legal/2016%20Privacy%20Requirements%20FINAL.pdf
This policy is not more stringent than similar federal law.
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| Natural Resources | Migratory Bird Hunting Rule | This rule is similar but not more stringent than Federal Counterparts. This rule incorporates by reference its Federal Counterpart, 50 CFR 20 |
| Risk And Insurance Management | West Virginia Executive Branch Privacy Policy: Individual Rights, Policy No: WVEB-P103 | This policy requires a department to first rely, when possible and appropriate, on the Personally Identifiable Information (PII) it collects directly from the individual. It requires that individuals be afforded the ability to: 1) access and copy his or her PII that a department acquires and maintains; 2) request the information be amended; or, 3) at minimum, a simple and effective way to have their questions and concerns addressed.
West Virginia Executive Branch Privacy policy and procedure is not based on any one federal or state privacy law. This privacy policy/procedure materially addresses the various requirements of the majority of the laws and regulations with which the West Virginia Executive Branch must comply and serves as a foundation or baseline. There are twenty-four related federal laws and twenty-eight state laws that govern various aspects of the West Virginia Executive Branch privacy program.
Summaries of West Virginia’s Privacy Requirements may be found at http://privacy.wv.gov/SiteCollectionDocuments/Legal/2016%20Privacy%20Requirements%20FINAL.pdf
This policy is not more stringent than similar federal law.
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| Natural Resources | Special Migratory Bird Hunting Rule | This rule is similar but not more stringent than Federal Counterparts. This rule incorporates by reference is Federal Counterpart, 50 CFR 20, Subpart H. |
| Natural Resources | Waterfowl Hunting Rule | This rule is similar but not more stringent than Federal Counterparts. This rule incorporates by reference its Federal Counterpart, 50 CFR 20. |
| Natural Resources | Special Waterfowl Hunting Rule | This rule is similar but not more stringent than Federal Counterparts. This rule incorporates by reference its Federal Counterparts, 50 CFR 20, Subpart H; 50 CFR 20.11.; 50 CFR 20.61 through 20.66; and 50 CFR 20.20. |
| Natural Resources | Fishing Regulations | This rule is similar but not more stringent than Federal Counterparts. This rule establishes regulations which apply to locks and dams regulated by the US Army Corps of Engineers. |
| Risk And Insurance Management | West Virginia Executive Branch Privacy Policy: Minimum Necessary and Limited Use, Policy No: WVEB-P104 | This policy requires a department to limit the collection, and disclosure of Personally Identifiable Information (PII) to its legal authority. Additionally, it lays out a standard that no PII should be collected or disclosed that are beyond what is reasonably needed to accomplish a legitimate departmental objective, except where law or public policy directs otherwise. It requires that each department determine: 1) what PII it collects and to develop appropriate collection and disclosure procedures; and 2) that all new processes that collect or disclose PII be evaluated to ensure compliance with this policy.
West Virginia Executive Branch Privacy policy and procedure is not based on any one federal or state privacy law. This privacy policy/procedure materially addresses the various requirements of the majority of the laws and regulations with which the West Virginia Executive Branch must comply and serves as a foundation or baseline. There are twenty-four related federal laws and twenty-eight state laws that govern various aspects of the West Virginia Executive Branch privacy program.
Summaries of West Virginia’s Privacy Requirements may be found at http://privacy.wv.gov/SiteCollectionDocuments/Legal/2016%20Privacy%20Requirements%20FINAL.pdf
This policy is not more stringent than similar federal law.
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| Risk And Insurance Management | West Virginia Executive Branch Privacy Policy: Notice, Policy No: WVEB-P105 | This policy requires departments to be open regarding: 1) the authority for collecting Personally Identifiable Information (PII); 2) the purpose of the collection; 3) the location of the entity maintaining the PII; 4) with whom the PII may be shared and why; 5) the rights an individual has; and 6) the department’s PII policies, procedures, standards and practices. This notice must also include a statement of how the individual’s PII is to be appropriately secured. The policy instructs on notice delivery and specific notice requirements for: 1) use of social security numbers; 2) HIPAA covered entities; 3) financial institutions; 4) information collected on children under the age of thirteen (13); and, 5) electronic transactions.
West Virginia Executive Branch Privacy policy and procedure is not based on any one federal or state privacy law. This privacy policy/procedure materially addresses the various requirements of the majority of the laws and regulations with which the West Virginia Executive Branch must comply and serves as a foundation or baseline. There are twenty-four related federal laws and twenty-eight state laws that govern various aspects of the West Virginia Executive Branch privacy program.
For highly regulated PII, law requires specific statements be contained within the privacy notice, and they are identified in policy. Federal law governing specific types of information include: Privacy Act of 1974, Section 7, 5 U.S.C. § 552a (note); the Health Insurance Portability and Accountability Act Privacy Rule, 45 CFR Part 164; Gramm-Leach-Bliley Act, 15 U.S.C. § 6801, 16 C.F.R. § 313; 72 Fed. Reg. 62890; and, Children’s On-line Privacy Protection Act, 15 U.S.C. § 6501 et seq., 16 C.F.R. Part 312.
Summaries of West Virginia’s Privacy Requirements may be found at http://privacy.wv.gov/SiteCollectionDocuments/Legal/2016%20Privacy%20Requirements%20FINAL.pdf
This policy is not more stringent than similar federal law.
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| Risk And Insurance Management | West Virginia Executive Branch Privacy Policy: Security Safeguards, Policy No: WVEB-P106 | This policy requires a department to implement appropriate management, operational, physical and technical controls to preserve the privacy, confidentiality, integrity and accessibility of Personally Identifiable Information (PII). Its standards require each Department to be in compliance with: 1) the policies and procedures of the Office of Technology (OT) and the Board of Risk and Insurance Management; and 2) legal requirements, regarding PII, established by federal law, state law and Executive Order. It instructs on the use of controls with regard to Sensitive Personal Information (SPI) and prohibitions of use of SPI. Other standards include: network security; media sanitization, record retirement and disposal; maintenance; hard copy security; and personnel security training.
West Virginia Executive Branch Privacy policy and procedure is not based on any one federal or state privacy law. This privacy policy/procedure materially addresses the various requirements of the majority of the laws and regulations with which the West Virginia Executive Branch must comply and serves as a foundation or baseline. There are twenty-four related federal laws and twenty-eight state laws that govern various aspects of the West Virginia Executive Branch privacy program.
Summaries of West Virginia’s Privacy Requirements may be found at http://privacy.wv.gov/SiteCollectionDocuments/Legal/2016%20Privacy%20Requirements%20FINAL.pdf
This policy is not more stringent than similar federal law.
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| Risk And Insurance Management | West Virginia Executive Branch Privacy Procedure: Redaction, Procedure No: WVEB-P106.1 | This procedure provides a basis for appropriate removal of Personally Identifiable Information (PII), including Protected Health Information (PHI), before sharing with a third party. The procedure outlines the acceptable method of redaction for PII maintained or disclosed on paper and instructs that employees are responsible for safeguarding PII, whether in paper or electronic documents.
West Virginia Executive Branch Privacy policy and procedure is not based on any one federal or state privacy law. This privacy policy/procedure materially addresses the various requirements of the majority of the laws and regulations with which the West Virginia Executive Branch must comply and serves as a foundation or baseline. There are twenty-four related federal laws and twenty-eight state laws that govern various aspects of the West Virginia Executive Branch privacy program.
Summaries of West Virginia’s Privacy Requirements may be found at http://privacy.wv.gov/SiteCollectionDocuments/Legal/2016%20Privacy%20Requirements%20FINAL.pdf
This procedure is not more stringent than similar federal law.
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| Natural Resources | Falconry | This rule is similar but not more stringent than Federal Counterparts. This rule incorporates by reference its Federal Counterparts, 50 CFR; 50 CFR 17.11; and 50 CFR 21.29. |
| Natural Resources | Fertility Control of Free Roaming Wildlife | This rule is similar but not more stringent than Federal Counterparts. This rule incorporates federally issued US FDA certification or permit approval as an application requirement. |
| Natural Resources | Elk Restoration and Management Rule | This rule is similar but not more stringent than Federal Counterparts. This rule incorporates federal agency standards for testing. USDA APHIS Veterinary Services approved tuberculosis test is included as the standard and a requirement for importation. |
| Pharmacy | Licensure and Practice of Pharmacy | An evaluation of this rule has led to the conclusion that it is not more stringent than its Federal counterpart. |
| Pharmacy | Rules of the Board of Pharmacy for the Uniform Controlled Substances Act | In West Virginia, WV CSR 15-2-7.11.1 governs the partial fill of Schedule II controlled substances. This rule requires the remaining portion of the prescription to be filled within seventy-two (72) hours of the partial filling. No further quantity of controlled substances may be supplied beyond seventy-two (72) hours without a new prescription.
At the federal level, Sec. 702 of the Comprehensive Addiction and Recovery Act of 2016 controls the partial fill of Schedule II controlled substances. The federal rule states that in emergency situations a partially filled prescription for a controlled substance in Schedule II shall be filled not later than seventy-two (72) hours after the prescription is issued. However, in general, not when dealing with emergency situations, remaining portions of a partially filled prescription for a Schedule II controlled substance shall be filled not later than thirty (30) days after the date on which the prescription is written.
The difference between the partial fill rules at the state and federal level is that the state rule does not distinguish between emergency situations and other prescriptions. All prescriptions must be fully filled within the seventy-two (72) hour window. However, the federal rule treats emergency prescriptions and other prescriptions differently. The federal rule, while requiring emergency prescriptions to be filled within seventy-two (72) hours, allows thirty (30) days for the remaining balance of other partially filled prescriptions to be filled.
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| Pharmacy | Record Keeping and Automated Data Processing Systems | A review of this rule has led to the conclusion that it is not more stringent than its Federal counterpart. |
| Agriculture | Nutrient Management Certification | It has been determined that this rule is not more stringent than its Federal counterpart (Federal Water Pollution Control Act (33U.S.C. 1251 et seq sec. 101g)). |
| Agriculture | Poultry Litter and Manure Movement into Primary Poultry Breeder Rearing Areas | It has been determined that there is no Federal counterpart for this rule. |
| Pharmacy | Licensure of Wholesale Drug Distributors, Third Party Logistics Providers, and Manufacturers | A review of this rule has led to the conclusion that the rule is not more stringent than its Federal counterpart. |
| Agriculture | Best Management Practices for Fertilizers and Manures | It has been determined that there is no Federal counterpart for this rule. |
| Agriculture | Poultry Rules for Hatcheries, Growers and Contractors Pertaining to Poultry Disease Control and Eradication | It has been determined that this rule is not more stringent than its Federal counterpart - National Poultry Improvement Plan (NPIP) 9CFR 145.14. |
| Pharmacy | Rules of the Board of Pharmacy for the Uniform Controlled Substances Act | At the federal level, Butalbitol is only considered a Schedule III drug if it contains aspirin. However, at the state level, all Butalbitol is considered a Schedule III drug pursuant to WV Code 60A-2-208-c-6. Schedule III controlled substances are referenced throughout Board Rule 15-2, Rules of the Board of Pharmacy for the Uniform Controlled Substances Act. In conclusion, the Board’s Rules regarding Schedule III drugs and Butalbitol are more stringent than their federal counterparts because all forms of Butalbitol are considered Schedule III per Board Rules.
Federal drug schedules often change, and it can take time to mirror such changes at the state level.
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| Aging | In-Home Worker Registry | Scope - provide a public list of in-home care workers, along with their qualifications, who voluntarily agree to be included and who have completed a criminal background check and who meet qualifications of WV Code 16-5P-1.
This rule is voluntary participation and is based on federal requirements of State Medicaid in-home services program.
A Provider Agency certifies their State Medicaid Program worker through the Continuing Certification Program (C.C.P.) and can at that time click to upload Provider information to the Worker Registry.
The Registry allows in-home services consumers to search and verify their in-home worker is certified. This registry also allows consumers to search for services by needs, location and service times.
This rule is voluntary and makes it less stringent than Federal requirements.
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| Senior Services | Hearing and Appeals Procedure | The WV Bureau of Senior Services Hearings and Appeals of adverse actions by the Bureau of Senior Services or an Area Agency on Aging.
The Federal Older Americans Act Section 305 requires a process for a fair hearing be developed by the State Units on Aging related to contracted Providers.
The process includes appeals of Area Agency on Aging action and Bureau actions as related to the Area Agency on Aging and local Provider Agencies.
This Procedural Rule is mandated by the federal funding for the Administration on Community Living, but only requires due process so there is no Federal Standard of process only that an appeals process be developed and in place. |
| Senior Services | Provider Operations Manual | The Manual includes Title III Older Americans Act Programs:
-Title III - C1 & C2
Congregate Nutrition Services (C-1)
Home Delivered Meals on Wheels (C-2)
- Title III-B Senior Center Operations and In-home Services
- Title III-E Alzheimer's, Congregate Respite, In-home Respite and Support Groups
- Title III-D Evidence Based Chronic Diseases and Wellness Programs
This Operations Manual is a "how-to" manual.
Instructs reader on policies, procedures and operations of programs as well as Federal Requirements.
1. The Manual defines each service;
2. Services Reporting;
3. Reimbursement Rates;
4. Documentation needed.
Lists all Federal Policies that must be in place for federally funded programs.
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| Coal Mine Health And Safety | Coal Mine Health and Safety Complete Report for Title 36 | Attached are two items. The first is the entire report with the second the only set of comments the Board as received. |
| Motor Vehicles | Disclosure of Information From the Files of the Division of Motor Vehicles |
- For bulk release of information to Vendors, Division of Motor Vehicles requires a signed contract, confidentiality agreement and a copy of a government issued Identification card or drivers' license to access the Division of Motor Vehicles information
- Automobile dealership information is protected from release without a valid subpoena
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| Health | Public Water Systems | The West Virginia Bureau for Public Health believes that two provisions of W.Va. Code R. §§ 64-3-1 et seq. (Public Water Systems) are more stringent than its federal regulatory counterpart.
I. Subsection 8.1
W.Va. Code R. § 64-3-8.1., provides that public water systems must ensure that average concentrations of fluoride in the drinking water of a public water system that artificially adjusts fluoride levels, “shall be no less than 0.6 milligrams per liter and no higher than 0.8 milligrams per liter. The optimum level for artificially adjusted fluoride is 0.7 milligrams per liter.” It is important to note that this rule does not require public water systems to artificially adjust fluoride levels, but instead provides that once a public water system does initiate a program of artificially introducing fluoride into the public water system, it must maintain those levels as prescribed by the legislative rule and may not make long term changes in the method being used to artificially adjust fluoride levels, such as a change in the chemical composition or the dosage rate, without first notifying the Commissioner of the Bureau for Public Health prior to implementing the proposed change. W.Va. Code R. § 64-3-8.2.
Under federal law the current enforceable drinking water standard for fluoride is 4.0 mg/L. This is the maximum amount that is allowed in water from public water systems. 40 C.F.R. § 141.51(b). It is set to meet the current public health goal for protection against increased risk of crippling skeletal fluorosis, a condition characterized by pain and tenderness of the major joints. Federal law does provide a non-enforceable secondary standard for fluoride of 2.0 mg/L, which is recommended to protect children against the tooth discoloration and/or pitting that can be caused by excess fluoride exposures during the formative period prior to eruption of the teeth. 40 C.F.R. § 143.3. Although water systems are not required to comply with secondary standards, for fluoride, federal regulations do require that systems notify customers if the average water levels exceed the secondary standard. 40 C.F.R. § 141.208.
Because federal regulations do not require public water systems to maintain average concentrations of fluoride in the drinking water of a public water system that artificially adjusts fluoride levels, once a public water system initiates a program of fluoridation, the state’s rule regulating public water systems is more stringent than its federal counterpart.
II. Subsection 7.6.
Section 7 of the rule addresses public water system disinfection requirements. Subsection 7.6 requires all public water systems, including those that use only ground water, to maintain at least 0.2 mg/l of total chlorine residual throughout the distribution system at all times.
Subsection 10.1 of the rule adopts the provisions of the federal National Primary Drinking Water Regulations (40 CFR Part 141) with exceptions to requirements contained in 40 C.F.R. 141.854 & 855 that relate to the routine monitoring requirements for non-community water systems serving 1,000 or fewer people using only ground water. These exceptions remove from the rule provisions of the federal regulations adopted by reference that are somewhat less stringent than the state rule. Consequently, exceptions to the federal regulations, in combination with the requirement contained in § 7.6, result in the state rule being more stringent than its federal counterpart.
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| Health | Hospice Licensure | The main substantive difference between the state legislative rule and its federal counterpart for hospices is the educational requirement related to a social worker. The state rule is more restrictive in that it requires a minimum of a bachelor’s degree from an accredited social work study and a license from the West Virginia Board of Social Work Examiners. The federal counterpart allows for degrees in other related areas of study, thereby potentially allowing for a large pool of individuals who would qualify as a “social worker.” |
| Motor Vehicles | Denial, Suspension, Revocation, or Nonrenewal of Driving Privileges |
- 91-5-15.1-15.7 Suspension for non-compliance of Child Support Orders
- 91-5-13.6 Reinstatement fee for conviction
- 91-5-13.3 Proof of compliance with court conviction
- Reinstatement fee for conviction
- Proof of compliance with court conviction
- Suspension period required for total point accumulated
- One year revocation for a third conviction of reckless driving within a twenty-four month time period.
- Driving while suspended or revoked requires a 90-day for 2nd or subsequent conviction whether operators are commercial motor vehicle or non-commercial motor vehicle.
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| Health | Behavioral Health Client Rights | Behavioral Health and Health Facilities
The Bureau for Behavioral Health and Health Facilities has two rules that have a federal counterpart, WV CSR 64-59 and 64-74, which both deal with patient rights. The federal counterparts are 42 CFR 482, Subparts A through E, and 42 CFR Part 483, Subpart I. Both West Virginia rules are more stringent than their federal counterparts in certain areas. Also incorporated by reference in CSR 64-59 are standards that are set by the “1993 Accreditation Manual for Hospitals of the Joint Commission…” and the “1993 edition of the Outcome Based Performance Measures of the Accreditation Council on Services for People with Disabilities….”
CSR 64-59 Behavioral Health Client Rights
West Virginia CSR 64-59 has 21 sections and only addresses patient treatment at state-owned and operated mental health facilities, i.e. William R. Sharpe, Jr. Hospital and Mildred Mitchell-Bateman Hospital. There are far more requirements in CSR 64-59 than in the federal counterparts 42 CFR 482, Subparts A through E, and 42 CFR Part 483, Subpart I. However, the state rules and the federal regulations can be read together except for WV CSR § 64-59-10, which is more stringent than 42 CFR 482.13(f). These sections outline the standards for restraint and seclusion of a patient. The state law is more stringent where it states that a person may not be restrained for more than two hours; the federal law allows for up to three hours.
Section 64-59-20 is also more stringent than its federal counterpart at 42 CFR 483.420(d)(4), which requires that “the results of all investigations must be reported to the administrator or designated representative or to other officials in accordance with State law within five working days of [an abuse or neglect incident]…. The state rule has a more detailed procedure of requiring advocates to be notified within an hour of the complaint and for the advocate investigation being completed and written report provided to the administrator within eight working hours. From there, the administrator has until the next work day to answer the abuse or neglect complaint. This is a shorter time frame than the five-day federal requirement.
Section 64-59-6, for the most part, can be read together with 42 CFR 483.440(c). However, the federal regulation requires that an individual program plan be completed within 30 days of admission, whereas, the state rule requires that an initial program plan be completed within 72 hours of admission, an interim program plan be completed after seven days, and then does not specify when the individualized program plan is supposed to be completed, but states that the client must have one. It is worth noting that the state rule requires more information sooner than the federal regulation.
Section 64-59-10.17 also appears to be more stringent than its federal counterpart at 42 CFR 483.450(d)(6), which requires that a client placed in mechanical restraints be checked every 30 minutes. In section 10 of 64-59, it states that “supervision of clients in mechanical restraints shall be on a one-on-one basis for the duration of the time the restraints are in place.” This seems to indicate that the person supervising the restraints stays with the patient the whole time, which is more stringent than the federal law.
Section 64-59-15 is more stringent than the federal regulation at 42 CFR 483.470, which states, among other things, that rooms can have up to four people in a room and must measure 60 square feet per client in multiple client rooms and at least 80 square feet in single client rooms. Section 15 of the state rule requires that two people, at most, be in a room and that the room provide 100 feet for each client in the room. This is more stringent than the federal regulation. While the state rules may not contradict the federal regulations anywhere else, thus requiring a stringency analysis, much of the state rule as pertaining to client living space is more burdensome than the federal regulation.
CSR 64-74 Behavioral Health Consumer Rights
West Virginia CSR 64-74 is the companion to 64-59, but addresses the rights of all individuals with behavioral health needs that are not at Sharpe and Bateman. For the most part, this rule is a lot less specific than 64-59 and has no parts that are more stringent that the federal patient rights regulation that is not also at issue in 64-59.
Public Comment
During the comment period on these two rules, the Department received one comment from Disability Rights of West Virginia, which is attached.
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| Motor Vehicles | Examination and Issuance of Drivers' Licenses | |
| Health | Behavioral Health Consumer Rights | Behavioral Health and Health Facilities
The Bureau for Behavioral Health and Health Facilities has two rules that have a federal counterpart, WV CSR 64-59 and 64-74, which both deal with patient rights. The federal counterparts are 42 CFR 482, Subparts A through E, and 42 CFR Part 483, Subpart I. Both West Virginia rules are more stringent than their federal counterparts in certain areas. Also incorporated by reference in CSR 64-59 are standards that are set by the “1993 Accreditation Manual for Hospitals of the Joint Commission…” and the “1993 edition of the Outcome Based Performance Measures of the Accreditation Council on Services for People with Disabilities….”
CSR 64-59 Behavioral Health Client Rights
West Virginia CSR 64-59 has 21 sections and only addresses patient treatment at state-owned and operated mental health facilities, i.e. William R. Sharpe, Jr. Hospital and Mildred Mitchell-Bateman Hospital. There are far more requirements in CSR 64-59 than in the federal counterparts 42 CFR 482, Subparts A through E, and 42 CFR Part 483, Subpart I. However, the state rules and the federal regulations can be read together except for WV CSR § 64-59-10, which is more stringent than 42 CFR 482.13(f). These sections outline the standards for restraint and seclusion of a patient. The state law is more stringent where it states that a person may not be restrained for more than two hours; the federal law allows for up to three hours.
Section 64-59-20 is also more stringent than its federal counterpart at 42 CFR 483.420(d)(4), which requires that “the results of all investigations must be reported to the administrator or designated representative or to other officials in accordance with State law within five working days of [an abuse or neglect incident]…. The state rule has a more detailed procedure of requiring advocates to be notified within an hour of the complaint and for the advocate investigation being completed and written report provided to the administrator within eight working hours. From there, the administrator has until the next work day to answer the abuse or neglect complaint. This is a shorter time frame than the five-day federal requirement.
Section 64-59-6, for the most part, can be read together with 42 CFR 483.440(c). However, the federal regulation requires that an individual program plan be completed within 30 days of admission, whereas, the state rule requires that an initial program plan be completed within 72 hours of admission, an interim program plan be completed after seven days, and then does not specify when the individualized program plan is supposed to be completed, but states that the client must have one. It is worth noting that the state rule requires more information sooner than the federal regulation.
Section 64-59-10.17 also appears to be more stringent than its federal counterpart at 42 CFR 483.450(d)(6), which requires that a client placed in mechanical restraints be checked every 30 minutes. In section 10 of 64-59, it states that “supervision of clients in mechanical restraints shall be on a one-on-one basis for the duration of the time the restraints are in place.” This seems to indicate that the person supervising the restraints stays with the patient the whole time, which is more stringent than the federal law.
Section 64-59-15 is more stringent than the federal regulation at 42 CFR 483.470, which states, among other things, that rooms can have up to four people in a room and must measure 60 square feet per client in multiple client rooms and at least 80 square feet in single client rooms. Section 15 of the state rule requires that two people, at most, be in a room and that the room provide 100 feet for each client in the room. This is more stringent than the federal regulation. While the state rules may not contradict the federal regulations anywhere else, thus requiring a stringency analysis, much of the state rule as pertaining to client living space is more burdensome than the federal regulation.
CSR 64-74 Behavioral Health Consumer Rights
West Virginia CSR 64-74 is the companion to 64-59, but addresses the rights of all individuals with behavioral health needs that are not at Sharpe and Bateman. For the most part, this rule is a lot less specific than 64-59 and has no parts that are more stringent that the federal patient rights regulation that is not also at issue in 64-59.
Public Comment
During the comment period on these two rules, the Department received one comment from Disability Rights of West Virginia, which is attached.
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| Health | Nursing Home Licensure |
Summary
A majority of the nursing home state licensure rule is duplicative of the federal requirements and substantively the same. The following is a list of areas where the state rule has set forth specific requirements where the federal counterpart makes a generic statement, or the state rule has slight additional requirements in areas the federal counterpart does not extend:
• Resident Rights: State rule provides additional residents’ rights in certain areas and provides specific requirements as to the assurance of financial security of the facility where the federal counterpart states such assurance must be “satisfactory to the Secretary.” Additionally, the state provides specific requirements for re-admitting a former resident when there was no bed-hold or a bed-hold has expired, and the federal counterpart states that the facility must have a policy for such situation. Finally, the state rule provides specific circumstances and situations that must be present when restraints on a resident are authorized in writing by a physician for specified and limited periods of time. The federal counterpart to this requirement merely states that the resident has a right to be free from restraints when not required to treat medical symptoms, but is silent as to what requirements must be met when restraints are necessary to treat medical symptoms.
o Federal Counterpart 42 C.F.R. §§ 483.10(c) and (d), 483.12(a) and (b), and 483.13(b)
• Quality of Life: Some additional rights found in state law include the retention of personal possession to make a resident’s room more homelike, the ability to practice religion of choice, the participation in planning of care and treatment, the refusal of certain visitors, and the required nursing home response to resident and family councils. In addition, state law imposes an additional requirement for the director of the activities program to demonstrate the ability to provide ongoing programs together with completion of a training course approved by the state.
o Federal Counterpart: 42 C.F.R. §§483.10(j) and 483.15(b), (c), and (f)
• Quality of Care: State rule provides that the nursing home shall evaluate residents having the potential to benefit from assistive devices for feeding to assure the devices are meeting the resident’s needs. The federal counterpart is silent as to the continued evaluation of the use of assistive devices and merely requires that the nursing home provide the same. The state rule requires that the nursing home complete and maintain specific information on any accidents involving residents, where the federal counterpart does not have this requirement. The state rule requires a specified number of nursing personnel per time per resident per day, where the federal counterpart is not specific but has a general requirement that it must meet resident needs. The state rule provides two qualifications for a dietitian. The first requirement is the same as the federal counterpart. The second requirement states that the individual “is qualified as defined by the West Virginia Board of Licensed Dietitians, and is licensed by that board to provide professional nutritional services in West Virginia.” The federal counterpart is more generic and states the individual may be qualified “on basis of education, training, or experience in identification of dietary needs, planning, and implementation of dietary programs.” The state rule, in addition to the same federal requirements, provides specific maximum and minimum temperatures for food storage and holding of hot and cold foods. The state rule requires that substances regarded as herbal products and dietary supplements be included in a drug regimen review and that such review must take place on site at the nursing home. The federal counterpart does not state that herbal products and dietary supplements must be included in this review and is silent on where the review must take place.
o Federal Counterpart: 42 C.F.R. §§ 483.25(k), 483.30(a) and (b), 483.35(a), (f), (g) and (i), 483.40(c), 483.60(c) and 483.65
• Physical Facilities, Equipment and Site Information: In addition to the same requirements as the federal counterpart, the state rule specifies that window coverings in resident rooms must be provided by the nursing home. Additionally the federal counterpart is silent as to who may apply pesticides at a nursing home, where the state rule provides that pesticides only be applied “by an applicator certified by the West Virginia Department of Agriculture or a registered technician operating under the supervision of a certified applicator.”
o Federal Counterpart: 42 C.F.R. §§483.30(b), 483.70(a) and (h)
Before the licensure rule can be updated and amended to reflect accurate licensure regulations, processes, and requirements, the licensure statute/code sections must be updated and amended. The state agency is willing to address and correct some of the duplicative regulations for this facility type.
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| Human Rights Commission | Human Rights Commission | Pursuant to W.Va. Code §29A-3-20 (2016), the West Virginia Human Rights Commission (“HRC”) has reviewed and evaluated “all state rules, guidelines, policies, and recommendations” under its jurisdiction that have federal counterparts.
There are 10 rules under the HRC’s jurisdiction, which are found at Title 77 of the Code of State Rules (C.S.R.). The HRC has found that none of its rules is “more stringent” than its federal counterpart or federal counterparts. In the context of human rights legislation, a state law may provide greater or equal protection for the rights of individuals than is afforded by federal law, but a state law may not provide for less individual protection or fewer protections.
Fortunately, the HRC’s rules, when enacted, were modeled on their federal counterparts, if any, as they existed at the time. Some of the HRC’s rules are purely procedural rules regarding the processing of state-law cases before the state agency, and thus have no federal counterpart.
On the other hand, significant changes were made to the federal Americans with Disabilities Act (“ADA”) via the ADA Amendments Act, effective January 1, 2009, which were intended to provide greater protections to more individuals who suffer from “disabilities.” Of course, the West Virginia Human Rights Act provides protections for individuals with disabilities, but our state rule aimed at clarifying the definition of “disability” (Series 1, 1994) has not been updated to match the more expansive protections of the federal ADA. As such, the federal counterparts could be said to be “more stringent” in this context, and supersede our state rule. The expanded definition of “disability” under the federal ADA is found in a counterpart to our state rule at 29 C.F.R. §1630.
The HRC has not yet received public comments pursuant to West Virginia Code §29A-3-20(a)(3), but will make a supplemental report upon receipt of any such comments.
FN1: The HRC’s rules that have federal counterparts are: Series 1, “Rules Regarding Discrimination Against Individuals With Disabilities”; Series 3, “Religious Discrimination”; Series 4, “Sexual Harassment”; Series 5, “Exemption of Private Clubs”; Series 9, “Rules Regarding Housing Discrimination Against Persons With Disabilities Who Utilize Assistance Animals”; and Series 10, “Pregnant Workers’ Fairness Act.”
FN2: More specifically, the HRC’s procedural rules are: Series 2, “Rules of Practice and Procedure Before the West Virginia Human Rights Commission”; Series 6, “Waiver of Rights”; Series 7, “Definition of Employer Under the West Virginia Human Rights Act”; and Series 8, “Rules for the Processing of Complaints and for Administrative Proceedings Under the West Virginia Fair Housing Act.”
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| Agriculture | WV Apiary Law | The federal law relating to Honey Bees is more restrictive and encompassing than current state regulations. The federal law regulates approved regions, germ plasm and also regulates more than honey bees. |
| Agriculture | Schedule of Charges for Inspection Services: Fruit | The product inspection fees are set by states individually. West Virginia is currently below the federal rate. |
| Agriculture | WV Plant Pest Act | The federal law regulates interstate movements. The state law regulates Intrastate goods. The USDA version of the Plant Pest Act is more complex. The USDA rule requires more paperwork and involves numerous steps to import plant material in the country, as opposed to importing plants into WV from other states. |
| Agriculture | Noxious Weeds | West Virginia adopted the federal list and is currently more restrictive than the federal list. West Virginia has included some that are not listed in the federal list of Noxious Weeds. |
| Agriculture | Industrial Hemp | Current state operations are under the Farm Bill which gives an exemption from being considered a controlled substance and allows states to research the feasibility of growing Industrial Hemp. DEA has not changed anything in this regard. West Virginia can be considered less restrictive than the Federal due to allowing Industrial Hemp to be grown as a research project. |
| Development Office | Procedural; Quality Control Inspection | Agencies are not federally required to upload information into the DBA FACS Pro system. The DBA system is the selected system by the state for the file of record. The signed QCI form is the document that details all work performed and ensures that the work is completed to DOE Standards. The DBA FACS Pro database requirement enhances client confidentiality and expedites the federally mandated monitoring process. |
| Development Office | Procedural; Income Verification | This policy was put in place to ensure that potential clients meet the required poverty income guidelines at the time of service, not the time of application. With waitlist times exceeding 6 months at some subrecipients due to the number of applicants, the client's income situation could have changed. DOE has identified this policy as a best practice. |
| Development Office | Procedural; Boundary Map and Deed Restrictions | This is done to verify evidence of federal program compliance before grant funds are encumbered. Without evidence of local sponsorship compliance, replacement of the local sponsor's park property as well as any questioned costs become the state's liability according to national Park Service Administrative Regulations. |
| Development Office | Procedural; More frequent fiscal monitoring | WV's Community Services Block Grant program has opted to conduct ore frequent fiscal monitoring in order to ensure that funds are being spent according to established regulations. Fiscal monitoring for this grant is also conducted in conjunction with the Weatherization Assistance Program when possible, which requires annual fiscal monitoring. The state has opted to monitor both programs while onsite to provide a more in-depth look into compliance with program regulations. |
| Nursing Home Administrators Licensing Board | Nursing Home Administrators Rule | The Code of West Virginia, 530, Article 25 delineates in greater detail the functions and duties of the State Nursing Home Administrators Licensing Board to affect compliance with federal rules and regulations. The Legislature approved an amendment to Nursing Home Administrators Rule Title 21CSR1, effective July 22, 2016.
Social Security Act 51908 (c)
WV21CSR1 30-25-5 thru 30-25-17
Code of West Virginia delineates greater detail and meets federal requirements.
The composition of the licensing board of nursing home administrators is more specific in the West Virginia Code of Regulations than in the Code of Federal Regulations.
42CFR 431.706
WVCSR 30-25-4 (d)
Licensing of nursing home administrators shall be carried out by a board of representatives of the professions and institutions concerned with the care of chronically ill and infirm aged patients.
Social Security Act 51908 (b)
42CFR Subpart N 431.702
WV Medicaid State Plan Amendment 4.25
WV CSR Chapter 30 Article 25
Meets federal requirements
To be certified for Medicaid participation, a nursing home must be licensed by the state and have an administrator licensed by the state who is responsible for the management of the facility.
Social Security Act 51902 (a) (29)
42CFR 483.75 (d), (2), (i), (ii)
WV Medicaid Nursing Facility Manual 514.5.1
Meets federal requirements
All nursing homes must be licensed by the Health Department in the State of West Virginia. A requirement of that licensure is the facility must have an administrator licensed by the state who is responsible for the management and day-to-day operation of the nursing home.
WV Rule 64-13-2.1
More specific
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| Environmental Protection - Secretary's Office | 47 CSR 2 Requirements Governing Water Quality Standards | These rules establish requirements governing the discharge or deposit of sewage,
industrial wastes and other wastes into the waters of the state and establish water quality standards for the
waters of the State standing or flowing over the surface of the State. It is declared to be the public policy
of the State of West Virginia to maintain reasonable standards of purity and quality of the water of the
State consistent with (1) public health and public enjoyment thereof; (2) the propagation and protection of
animal, bird, fish, and other aquatic and plant life; and (3) the expansion of employment opportunities,
maintenance and expansion of agriculture and the provision of a permanent foundation for healthy
industrial development. (See W. Va. Code §22-11-2.) |
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